Biden is pushing to end “Stay in Mexico”. But he may still have to apply it.

The Department of Homeland Security released a new memo on Friday ending the Migrant Protection Protocol, a Trump-era directive requiring migrants to wait in Mexico for U.S. immigration court hearings. This is President Joe Biden’s second attempt to end the policy after a previous effort was blocked in federal court.

The memo argues that the policy, also known as “Stay in Mexico,” has done more harm than good, especially in terms of humanitarian impact.

“I recognize that the MPP has probably contributed to reducing migratory flows,” wrote DHS secretary Alejandro Mayorkas in the four-page note announcing the policy change. “But it did so by imposing substantial and unjustifiable human costs on people who have been exposed to harm while waiting in Mexico.”

This determination is in line with Biden’s campaign promises on immigration, which included the cancellation of policies such as Trump’s “zero tolerance” policy that resulted in family separations. However, this flies in the face of the administration’s continued reluctance to completely remove other Trump-era legacies like Title 42, the immigration ordinance that allowed the deportation of migrants as as a public health measure during the pandemic.

And even though Biden began canceling the MPP shortly after taking office in January, his administration has had to prepare to re-implement the program in recent weeks in order to comply with a previous court order – albeit he is actively fighting to end politics. for real.

This means that Friday’s note will not change anything immediately: according to DHS, “the termination of the MPP will not take effect until the current injunction is lifted.”

The MPP was first implemented in 2019 by the Trump administration, apparently to deter people attempting to cross the southern border and to speed up decisions on asylum claims. But as argued in Friday’s memo from Mayorkas and Aaron Reichlin-Melnick, policy adviser to the American Immigration Council, featured on Twitter, “The fact that the MPP resolved the cases more quickly does not mean that the cases were resolved fairly or precisely.”

A 39-page justification published with the memo describes in more detail the conditions migrants face in detention in Mexico, including the risk of sexual assault and kidnapping in the settlements where they have stayed, as well as unsanitary and unstable housing conditions, limited to health care and legal advice, and insufficient food while they waited for the United States to decide on their asylum hearings.

The right to seek asylum has been protected by international law since the adoption of the United Nations Universal Declaration of Human Rights in 1948.

Ultimately, the Biden administration argues that the policy has far too many problems for it to be saved: not only does it require significant resources that could be allocated elsewhere, according to the DHS memo, but the MPP does not. has also failed to reduce crimes such as human trafficking. and drug trafficking, puts people at serious risk and fails to address the root causes that lead people to seek asylum.

Moreover, according to the memo, any program correction would require Mexico’s cooperation and further diplomatic negotiations – time and energy that could be better spent on other issues. And other strict immigration policies were enacted at the same time as the MPP, which makes it difficult to assess the deterrent effect that the policy might have had.

Initial decision to end MPP has been tangled in the courts

In addition to exposing policy issues with the MPP, Mayorkas’ memo responds to an August decision by a Texas Federal District Court to block DHS’s original June 1 memo ending the policy. The memo follows a February executive order from Biden, which called on DHS to conduct a thorough review of the program’s costs and benefits and recommend whether it should stay in place, continue with changes, or cease altogether. .

The new directive tries to fill gaps in the administration’s June 1 efforts to end the MPP program, which was blocked by Trump-appointed District Court Judge Matthew Kacsmaryk on the grounds that DHS failed not followed the proper administrative procedure when posting the memo. .

Kacsmaryk also argued – wrongly – that the United States had only two options for dealing with migrants: either deport them to “contiguous territory”, in this case Mexico, or detain them in the United States. Given that there is not enough detention space in the United States to house all of these migrants “subject to compulsory detention,” Kacsmaryk explained, the only option for DHS would be to return migrants coming from. other countries in Central and South America – and some even further afield – in Mexico.

However, as Ian Millhiser de Vox explained at the time, the United States does indeed have a third option when dealing with asylum seekers: it can offer them parole, the option to stay in the United States. while their asylum claims or other efforts to obtain legal status the immigration system. This system was used, for example, to reunite Cubans and Haitians with their families in the United States, and for Afghan nationals fleeing the country after the Taliban took power.

Despite this, the Supreme Court upheld Kacsmaryk’s ruling – for now – in an August order dismissing the Biden administration’s request for a stay during the appeal process.

As of this month, litigation in the case is still ongoing: The Fifth Circuit Court of Appeals is due to hear arguments on Tuesday in a lawsuit brought by the states of Texas and Missouri against the federal government , asking for the reinstatement of the deputy. According to the Associated Press, the United States should request that the case be referred to Kacsmaryk.

“As long as the injunction is in place, we are obligated to comply with it. But as we said, we are fighting it vigorously, appealing vigorously, and so with this new memo we will either seek to have a Fifth Circuit overturn the District Court decision or have the District Court do it. – even, ”an official DHS told reporters on a call Thursday.

Parts of Biden’s immigration policy still stuck in the Trump era

While the decision to end the MPP is undoubtedly a step towards implementing the more humane immigration policy that Biden campaigned on, other elements of Biden’s southern border policy still resemble more to those of the Trump administration.

Specifically, Title 42 – the Centers for Disease Control and Prevention’s directive that allows the deportation of migrants due to public health concerns – remains in place, even as the United States prepares to welcome tourists again. foreigners from November 8.

The result, according to Nicole Narea de Vox, is “a growing gap between the progressive values ​​of immigration professed by President Joe Biden and the enforcement policies he implements at the border,” a gap that has led to “confusion among immigration officials, uncertainty for migrants, and questions over whether the president has a coherent immigration strategy.”

Under Title 42, which the Trump administration put in place in March 2020, at the start of the coronavirus pandemic, the Biden administration justified the expulsion of thousands of Haitian immigrants, even as Haiti was consumed. by the political crisis, violence, natural disasters and the Covid-19 pandemic.

In September, Biden’s special envoy to Haiti, Daniel Foote, resigned in protest against the deportations, and another official – State Department legal adviser Harold Koh – did the same earlier this month.

“I believe that this administration’s current implementation of the Title 42 authority continues to violate our legal obligation not to expel or return (‘refoul’) individuals who fear persecution, death or torture, by especially migrants fleeing Haiti, ”Koh wrote in an October article. memo obtained by Politico. “Legal and more humane alternatives clearly exist, and there are imminent opportunities in the near future to substitute these alternatives for the current, very flawed policy. ”

According to US Customs and Border Protection, Title 42 was used to deport more than one million migrants between October 2020 and September this year, denying them a hearing with an immigration judge.

As Narea points out, the Biden administration is caught in a bind in trying to please critics from left and right – to the detriment of migrants.

She writes:

[Biden] pursued policies designed to uplift immigrants who put down roots in the United States, many of whom were successful in winning public sympathy. But the migrants most Americans will never see are now the subject of his toughest enforcement initiatives. This approach left Biden with a border policy not so different from what he once decried.

Even when it comes to the MPP, it’s unclear how successful Biden will be in reversing the policies of the Trump era. Despite the administration’s latest efforts, she may be forced to return to the MPP at least temporarily, as it’s unclear how the courts will react to Friday’s DHS memo.

The administration has negotiated with the Mexican government to reinstate the policy in accordance with the August district court order, according to BuzzFeed, and it has contracted to build new camps to hold migrants at the border.

In October, dozens of legal groups working with asylum seekers signed a letter refusing to work with the administration to implement the policy, claiming to do so would be “complicit in a program that facilitates rape, torture, death and separations of people seeking protection by committing to provide legal services.

In their letter to the administration, the 73 “legal service providers, law school clinics and law firms” called on the government to “take immediate action” to end Title 42 and resume the closure of the program. MPP while treating cases still covered by this program. directive.

“We are ready to provide legal services to asylum seekers, if your administration respects US and international law,” the letter concludes. “But there is no protection in the migrant protection protocols.”

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