A little over four months after President Joe Biden officially ended his predecessor's "remain in Mexico" policy, his administration is set to put the controversial policy back into effect after a federal judge said Biden's termination of the program violated the law.
Administration officials told the press Friday that Migrant Protection Protocols — a policy requiring migrant asylum seekers to wait in Mexico for their U.S. court hearings — will be temporarily reinstated in mid-November as the administration prepares another attempt to end the program.
Former Republican President Donald Trump implemented the MPP policy in 2019 as a means of ensuring that migrants who traveled to the southern border claiming to seek asylum did not enter the country illegally and then disappear before their court hearings. An estimated 68,000 migrants were returned to Mexico under Trump's policy, according to the Department of Homeland Security.
Biden, a Democrat, campaigned against MPP, claiming it was inhumane. Shortly after he took office in January, Biden paused the program as part of a wider effort to reverse many of Trump's immigration policies.
In April, Missouri and Texas sued the Biden administration, arguing that pausing MPP led to a surge of illegal immigration at the U.S.-Mexico border that inflicted costs on the states. The Department of Homeland Security attempted to officially rescind the policy in June, when DHS Secretary Alejandro Mayorkas said it did not "adequately or sustainably enhance border management."
Then in August, a federal judge blocked the Biden administration from enacting its plan to end the "remain in Mexico" policy. The Biden administration appealed its case to the U.S. Supreme Court, which refused to take it up in a 6-3 decision, leaving the lower court's ruling in effect.
Now, according to Reuters, the Biden administration is in the tricky position of having to restart the "remain in Mexico" program while also trying to end 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 program 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 U.S. 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 late on Thursday 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 $14.1 million to erect and $10.5 million per month to operate.
The Biden administration is communicating with Mexico on how to reinstate the policy. Mexico's foreign ministry said in a statement on Thursday that it has a "number of concerns" over MPP, including due process for migrants, legal certainty, access to legal aid, and the safety of migrants.
The DHS added in a statement that Mexico must agree to accept the return of asylum seekers into its custody in order to implement MPP.
"Significantly, Mexico is a sovereign nation that must make an independent decision to accept the return of individuals without status in Mexico as part of any reimplementation of MPP. Discussions with the Government of Mexico concerning when and how MPP will be reimplemented are ongoing," the DHS said.