Biden Administration Tries Again to End Trump’s ‘Remain in Mexico’ Policy

WASHINGTON — The Biden administration is making another attempt to end a Trump-era immigration program that a court ordered be reinstated, offering a more detailed description about the “benefits and cost” of forcing some asylum seekers to wait in Mexico while their cases are pending.

“I have concluded that there are inherent problems with the program that no amount of resources can sufficiently fix,” Alejandro N. Mayorkas, the homeland security secretary, wrote in the new justification for ending the program, released on Friday.

Republicans have said the program, known as the Migrant Protection Protocols, or M.P.P., stemmed illegal migration, while human rights advocates have assailed it as inhumane.

While the administration is still following the court order to restart the program, it is hoping that the new memo addresses the issues raised by a federal judge in Texas, who ruled in August that the seven-page justification Mr. Mayorkas provided in June for ending the program was “arbitrary and capricious.” The new justification, which includes a summary and a detailed explanation, is more than 40 pages.

Condemning the program while simultaneously having to put plans in place to restart it illustrates how difficult it has been for the Biden administration to fulfill one of President Biden’s biggest campaign promises: reversing some of the restrictive immigration policies put in place by former President Donald J. Trump.

The M.P.P. program, also referred to as Remain in Mexico, “had endemic flaws, imposed unjustifiable human costs, pulled resources and personnel away from other priority efforts, and did not address the root causes of irregular migration,” Mr. Mayorkas said in a statement Friday, adding it “fails to provide the fair process and humanitarian protections that individuals deserve under the law.”

The Biden administration has continued using a public health rule Mr. Trump put in place at the beginning of the pandemic that gives border officials the authority to turn away migrants, even those seeking asylum, which has also been decried by immigration advocates as inhumane. It has been used about 60 percent of the time, and many have been allowed into the country to pursue asylum claims.

After Mr. Biden ended the program, Missouri and Texas sued to have it reinstated — in part, they said, because the termination forced them to provide government services to the immigrants who were now allowed to wait here for their asylum cases to move through the sluggish system. Judge Matthew J. Kacsmaryk of the U.S. District Court for the Northern District of Texas sided with the states.

The Supreme Court refused to block his order, and the administration has been making an effort to restart it, despite its opposition. (The program faced court challenges during the Trump administration as well.)

The program forces asylum-seeking migrants who left a third country and traveled through Mexico to wait there until the United States makes a decision about their case. It was put in place at the beginning of 2019 and was one of several measures taken during the Trump administration to limit who can seek asylum in the United States.

Human rights advocates have argued that the program forced people to stay in unsanitary tent encampments where they faced harsh weather as well as the danger of sexual assault, kidnapping and torture. On Friday, Senator Bob Menendez, Democrat of New Jersey, called the policy “one of the most destructive vestiges of Donald Trump’s anti-immigrant legacy.”

In a Thursday court filing, Missouri and Texas argued that the sharp increase in Haitian migrants who arrived in Del Rio last month could have been prevented if the program had been in place. “The crisis at the border continues, in no small part because defendants are not complying in good faith” with the court’s order to restart the program, according to the Thursday filing. Without the program in place, the plaintiffs said, thousands of migrants “have reason to think they can freely enter the United States.”

In the new termination memo, Mr. Mayorkas acknowledged that data suggests there were fewer illegal border crossings while the program was in place, a point Republicans have been hammering as the country saw the highest number of illegal crossings over the past 12 months in at least 60 years.

“But it did so by imposing substantial and unjustifiable human costs on the individuals who were exposed to harm while waiting in Mexico,” he wrote, adding that “correlation does not equal causation and, even here, the evidence is not conclusive.”

Since August, the administration has been taking steps to restart the program, including issuing new contracts to set up tent courts on the Texas border, which was what was in place before the Biden administration ended the program. The administration said it would be prepared to restart the program in mid-November.

This prompted groups that provide legal services to asylum seekers waiting in Mexico to tell the Biden administration that they would not participate if the program were to be reinstated.

“We refuse to be complicit in a program that facilitates the rape, torture, death and family separations of people seeking protection by committing to provide legal services,” the groups wrote in a letter earlier this month.

But nothing can happen unless Mexico agrees to allow people to wait there while American immigration officials review asylum claims. Homeland Security officials said the government was in discussions with Mexico and was trying to address some of the humanitarian concerns the country had said must be addressed before reinstating it. One request from the Mexican government is that the United States act more swiftly in deciding asylum cases, a homeland security official said, speaking on condition of anonymity because of agency rules.

There are more than 25,000 asylum claims pending from people affected by the program, according to data from the Transactional Records Access Clearinghouse at Syracuse University. Of the cases completed, only 1.6 percent of the applicants were granted asylum.

Ursela Ojeda, the senior policy adviser for the Women’s Refugee Commission’s migrant rights and justice program, said the new memo was a welcome step, but she had hoped Mr. Mayorkas would have issued it sooner.

“It’s really worrisome that we are 10 months into this administration, and there are still several Trump administration policies — not just M.P.P. — that are still being implemented at the border,” she said, in particular the continuation of the public health rule, which the administration is fighting in court to keep in place. “Instead, we see a doubling down on policies of deterrence and policies that really aren’t compatible with the right to seek asylum in this country.”

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