The Department of Homeland Security tried for a second time Friday to end a Trump-era policy requiring asylum claimants to wait in Mexico for their cases to be heard in US immigration courts — despite acknowledging that the policy “likely” helped reduce illegal immigration.
President Biden initially suspended the policy — officially known as the “Migrant Protection Protocols” but commonly known as the “Remain in Mexico” policy — hours after taking office Jan. 20. Homeland Security Secretary Alejandro Mayorkas formally terminated the program June 1, but Texas-based US District Judge Matthew Kacsmaryk ordered in August that it be reinstated.
In his ruling, Kacsmaryk found that the administration violated a federal law spelling out certain steps government agencies must take when implementing policy. Specifically, he found that Mayorkas “failed to consider several of the main benefits” of the policy, including that it “reduc[ed] the number of aliens DHS would have to detain by returning certain aliens to Mexico.”
In the updated memo issued Friday to the heads of DHS’ immigration agencies, Mayorkas acknowledged: “I recognize that MPP likely contributed to reduced migratory flows. But it did so by imposing substantial and unjustifiable human costs on the individuals who were exposed to harm while waiting in Mexico.”
Mayorkas then insisted that the Biden administration “is pursuing a series of policies that disincentivize irregular migration while incentivizing safe, orderly, and humane pathways.”
“Once fully implemented,” Mayorkas added, “I believe these policies will address migratory flows as effectively, in fact more effectively, while holding true to our nation’s values.”
Kacsmaryk also ordered the administration to make a “good faith” effort to restart the program and enforce it until it had been lawfully rescinded and immigration officials had enough space to hold all detained illegal immigrants.
The White House had suggested earlier this month that the program could be re-started as soon as mid-November, pending agreement from the Mexican government that it would take part. Mexico wants immigration cases to generally conclude within six months, in addition to timely and accurate access to case information and better access to legal counsel for asylum-seekers.
Despite Mayorkas writing Friday that “I have concluded that there are inherent problems with the program that no amount of resources can sufficiently fix,” the secretary added that the administration would continue complying with Kacsmaryk’s order until “as soon as practicable after a final judicial decision to vacate the Texas injunction.”
The Fifth Circuit Court of Appeals is scheduled to hear arguments Tuesday in a lawsuit filed by Texas and Missouri challenging the order to end the policy. The administration is expected to ask that the case be returned to Judge Kacsmaryk.
Meanwhile, the administration is rebuilding tent courts in Texas border cities of Laredo and Brownsville to handle an expected influx of asylum-seekers.
The Mayorkas memo was sent one day after the Wall Street Journal reported the Biden administration was considering paying out close to $1 billion to settle lawsuits filed by illegal immigrant families who were separated at the US-Mexico border under the Trump administration’s “zero tolerance” policy in 2018.
Republicans have blasted the report as the latest example of the Biden administration being soft on illegal immigration and stoking a humanitarian crisis at the southern frontier.
With Post wires