A string of recent court decisions has put President Biden in a predicament: Re-implement his predecessor's Remain in Mexico policy in good faith or turn to Trump-era tactics to dismantle the divisive immigration rule.
A lower court decision upheld by the Supreme Court last month orders the White House to resume former President Trump’s Migrant Protection Protocols (MPP) -- a program Biden pledged to end during the 2020 campaign.
Critics of the program, first enacted in December 2018, argue it essentially blocks migrants from applying for asylum. Since its implementation, the U.S. has pushed as many as 70,000 people back to Mexico, forcing them to wait in border towns for their day in U.S. immigration court.
“The question of what happens now turns on what does good faith mean?” said Jorge Loweree, policy director for the American Immigration Council.
“The federal government doesn't only have a binary choice to detain every person at the southern border or expel them to Mexico -- there are other options they have under law.”
While the initial district court decision largely forced the Biden administration to re-administer the program, the Fifth Circuit opinion that was upheld by the Supreme Court gives Biden officials much more leeway in how to do so.
It notes the government does not have to restart MPP overnight and that it has the discretion to allow some migrants to enter the country to pursue asylum claims without holding them in immigration detention.
They could choose to run with “Trump lite,” said Ahilan Arulanantham, co-director of the Center for Immigration Law & Policy at the University of California, Los Angeles School of Law.
“The threshold question is a political one, it's not actually legal one. Do we want to stick to the plan that we started when we ended MPP at the beginning and that President Biden promised to do at the debates and all that?” he said.
“Or do we want to now change course and adopt a policy that is the Trump policy or something closer to the Trump policy than what we had originally said we were going to do?”
It’s clear many Democratic lawmakers want Biden to stay the course and stick with his campaign promise.
“MPP does not represent our values as a country and should be permanently discarded along with the many other unlawful Trump administration policies designed to punish and deter refugees from seeking safety. The court orders leave ample room for your administration to ensure MPP never again puts another person in harm’s way,” nearly 30 Democrats wrote to Biden in a letter Thursday spearheaded by Rep. Veronica Escobar (D-Texas) and Sen. Bob Menendez (D-N.J.).
Some say the Biden administration should take another page out of the Trump administration’s playbook and simply rewrite the memo withdrawing MPP.
It’s a tactic Trump officials used with his so-called Muslim ban, drafting the policy three times as it repeatedly faced litigation.
“If the administration really wants the policy outcome, it could certainly rewrite the memo. The Muslim ban was written three times because the administration wanted the policy outcome. They wrote in one way, it got struck down. They write it again, it goes to the Supreme Court. They write it again, each time curing whatever defects the court is describing in order to make it harder to attack. And surely you could do that here, and the court decisions give you the road map for how to do it. It’s not rocket science,” Arulanantham said.
For Biden to do the same would involve replacing his June memo with a new one.
“They frankly should consider issuing a very lengthy, 100-page-plus memo going through every detail they possibly can about the program, the reasons for rescinding it, and the problems they see with it to call Judge Kacsmaryk’s bluff,” Loweree said, referring to the federal district court judge who first directed Biden to re-implement MPP.
But Arulanantham said the administration's hesitation to do so is likely significant.
“There’s one explanation staring you in the face for why they don't want to do that. And that has to be that they genuinely I think are undecided about whether they actually want to get rid of MPP,” he said.
The Department of Homeland Security (DHS) appealed the Fifth Circuit’s decision, but it's not clear what next steps they plan to take in terms of implementation.
Reached for comment, DHS confirmed that it has not yet removed anyone to Mexico and pointed to an Aug. 24 statement.
“As the appeal process continues, however, DHS will comply with the order in good faith. Alongside interagency partners, DHS has begun to engage with the Government of Mexico in diplomatic discussions surrounding the Migrant Protection Protocols,” DHS said after the Supreme Court decision.
According to CBS News, DHS’s policy office has been working on plans for an "expeditious reimplementation," obtaining a memo that included cost estimates.
But reimplementing MPP comes in the midst of an incredibly complex picture.
After the Biden administration ended the Trump policy, it started to process some 13,000 applicants into the country.
But an estimated 25,000 people are still waiting along the Mexico border, living in refugee camps in an increasingly chaotic situation. The U.S. government has urged Mexico to clear some of the camps, citing security concerns.
And the U.S. lost track of many of the applicants, who left Mexico rather than await their court date, something DHS Secretary Alejandro Mayorkas wrote in his revision of the program “resulted in the abandonment of potentially meritorious protection claims.”
Meanwhile, the Biden administration has continued another Trump policy, Title 42, which allows the U.S. to immediately expel border crossers without giving them the chance to apply for asylum.
Over the last five months, border officials have expelled roughly 100,000 people each month using Title 42, a group that includes mostly single adults as unaccompanied children and some families are exempted from the policy.
Arulanantham said on MPP, the Biden administration could take a similar tactic, continuing the program, but exempting unaccompanied children and families.
“You could pick whoever you think doesn't can't get a fair hearing under MPP,” he said, or carve out certain populations who wouldn’t fare well in refugee camps, including non-Spanish speakers.
“They could say, ‘We don't think we don't think children can get fair hearings under MPP so, for children who are coming here alone or families who have children in them, we're not going to apply MPP. But we will apply it to single adults, so single adults who come here have to go back to refugee camps in Mexico to wait for their case dates,’” he said.
But Arulanantham acknowledged the carve outs could force the Biden administration to have a different set of rules for a number of populations.
“If they choose to keep MPP in some forms, then all these different groups essentially could be treated differently,” he said.
“A middle ground like this is essentially saying, ‘We’re going to operate the normal asylum system for some set of people but keep it shut off for another set of people.’”
Also adding to the complexities is that many don’t believe MPP itself was legal in the first place--a fact that is likely to tee up new lawsuits for a Biden administration that had already sought to pause cases challenging the Trump policy.
Anand Balakrishnan, a lawyer with the American Civil Liberties Union, which previously sued over MPP, said beyond the underlying illegality they also found success in arguing that the procedures to screen people under MPP were insufficient under domestic and international asylum laws.
“It's created a humanitarian crisis of its own,” he said. “MPP, while it purports to allow people to apply for asylum, in reality--and the numbers bear this out--it's a completely hollow promise. It essentially strands people in extraordinarily dangerous conditions.”
The decision also has foreign policy impacts, as the U.S. seeks to work with Mexico on a number of matters, including allowing for work permits for those living in the refugee camps.
“Judge Kacsmaryk is essentially dictating foreign policy to the administration,” Loweree said.
“Judges have been reluctant to interfere in matters of foreign policy forever, but now this judge is taking it upon himself to say you have to restart this program even though it forces the administration to externalize some aspects of immigration processing onto a another country, which is just unheard of.”
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