Court ordered Biden to restart Trump's “Remain in Mexico” — but he didn't have to make it worse

Like Obama before him, Biden may want to look tough on immigration to fend off GOP attacks. It probably won't work

By Igor Derysh

Senior News Editor

Published December 11, 2021 8:00AM (EST)

Donad Trump and Joe Biden (Photo illustration by Salon/Getty Images)
Donad Trump and Joe Biden (Photo illustration by Salon/Getty Images)

The Biden administration said its hands were tied after a court ordered it to restart the Trump-era "Remain in Mexico" policy that prevents asylum seekers from crossing the border. But President Biden didn't just bring back the program, he expanded it — and while the reasons why are not entirely clear, they may have more to do with politics than with humane immigration policy.

Biden trashed former Donald Trump's policy on the campaign trail last year, vowing to undo his predecessor's "inhumane"  immigration crackdown. During a debate last fall, Biden called out Trump over the "Remain in Mexico" policy, formally known as the Migrant Protection Protocols (MPP), which has forced nearly 70,000 asylum seekers to wait in Mexico while their claims are processed, leaving many to stay for months in makeshift tent camps along the border.

"This is the first president in the history of the United States of America that [said] anybody seeking asylum has to do it in another country," Biden said at the time. "That's never happened before in America. … They're sitting in squalor on the other side of the river."

Biden did order an end to the policy right after taking office, but then a federal court ordered the administration to restart the program until it increases its capacity to hold migrants inside the U.S. That ruling came after the Republican attorneys general of Texas and Missouri sued the new administration for not consulting with state governments on how to handle the inflow of asylum-seekers.

The administration last week reached a deal with Mexico to revive MPP and began returning asylum seekers to the country on Wednesday. But Biden didn't simply restart the program, he actually expanded it. Under Trump, only Spanish speakers and Brazilians were covered by the policy. But Biden's policy includes citizens of all countries in the Western Hemisphere, meaning that asylum-seekers from countries like Haiti can also now be sent to Mexico even though most do not speak Spanish. Haitian migrants in particular have faced a wave of racial discrimination and violence in Mexico. Immigration advocates like Aaron Reichlin-Melnick, policy counsel at the American Immigration Council, observed that Biden's didn't just bring the MPP policy back, he "made it even worse."

"The Biden administration was not ordered by the court to expand Remain in Mexico to new populations," Ursela Ojeda, senior policy adviser for migrant rights and justice at the Women's Refugee Commission, told reporters last week. "They are going well above and beyond good faith compliance that's required of them to make this policy more cruel and more deadly."

The administration has not explained why it expanded the program.

RELATED: Why is the Biden administration still keeping migrant kids locked up?

Under Trump, nearly 70,000 migrants seeking asylum were sent to Mexican border towns where many endured unsanitary and overcrowded conditions and faced gang violence. The nonpartisan organization Human Rights First in February found "at least 1,544 publicly reported cases of murder, rape, torture, kidnapping" and other violent assaults targeting migrants who had been forced to remain in Mexico.

The Biden administration said it is including new exemptions in the policy, which will cover families, elderly people and people with disabilities. And border agents will now interview migrants to determine if they have a "reasonable possibility" of facing danger in Mexico. But all such decisions will be left to the discretion of individual border agents.

The union for asylum officers tasked with screening migrants subject to MPP issued a statement last week objecting to the "resurrection of this irredeemably flawed program."

"While the administration has taken measures intended to mitigate some of the most egregious elements of MPP's prior iteration, a program that requires asylum seekers to remain in one of the most dangerous parts of the world while their cases are pending in U.S. immigration courts cannot guarantee their protection from persecution and torture, as required by U.S. law," the statement said.

The Biden administration has also said it will process every asylum claim within six months. The Trump administration made a similar claim but could not honor it. Some cases dragged on for years and the Biden administration still faces a massive immigration court backlog and a shortage of immigration judges.

The administration has also said it will coordinate with Mexican officials to provide "safe and secure" shelters, but shelter directors along the border recently told Reuters that they are already overwhelmed.

"We categorically reject the Biden administration's claims that it can administer the Remain in Mexico program in a more humane manner," Jorge Loweree, policy director at the American Immigration Council, said in a statement. "The longer the administration delays terminating this unlawful and cruel policy, the more people will suffer," he added.

Homeland Security Secretary Alejandro Mayorkas issued a memo in October reiterating the administration's commitment to ultimately ending the program.

"MPP 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," he said in a statement. "MPP not only undercuts the Administration's ability to implement critically needed and foundational changes to the immigration system, it fails to provide the fair process and humanitarian protections that individuals deserve under the law."

But a senior DHS official told BuzzFeed News that the "expansion to the whole Western Hemisphere seems to belie the argument that we don't want to implement MPP."

The administration's claims that it will pursue a more humane policy have only further angered immigration advocates who feel stung by the return of the program.

"Under this new expansion, even Haitian nationals who don't speak Spanish will be forced to wait in Mexico," Loweree said. "This disparate impact on Black immigrants comes on the heels of administration's mass disappearance of thousands of Haitians in Del Rio and cannot be ignored."

Loweree was referring to the September mass deportation of Haitian immigrants being held in Del Rio, Texas, which was carried out despite warnings from the DHS civil rights office that it could violate the administration's civil and human rights obligations, according to a memo obtained by BuzzFeed News. Daniel Foote, the administration's special envoy to Haiti, resigned in protest of the "inhumane, counterproductive decision to deport thousands of Haitian refugees." State Department adviser Harold Koh soon followed Foote out the door, slamming the administration's "illegal" forced removal of Haitian migrants.

The Haitian migrants were deported under Title 42, a Trump-era public health order allegedly masterminded by immigration hardliner Stephen Miller that, again, the Biden administration has kept in place. The policy allows border officials to turn away nearly all asylum seekers at the border. A federal judge in September ordered the administration to stop using the rule to turn away migrants in response to a lawsuit from civil rights groups that called the policy "cruel and lawless." But the Biden administration appealed the order and an appellate court allowed it to resume expulsions while the case is litigated.

Immigration was a critical election issue for Biden, who along with a chorus of Democrats repeatedly called out Trump for separating families at the border and holding "kids in cages" at detention facilities. But the new administration seemed to reverse course in dramatic fashion after coming under fire over a surge of border crossings in the first months of Biden's presidency.

While the president and top advisers have continued to preach a more "humane" immigration system and advocate rebuilding the mess that Trump left behind, the White House rushed to counter right-wing attacks blaming Biden for the surge and stoking fears of so-called migrant caravans by making forceful statements warning Central American migrants against traveling to the U.S., reopening the same temporary detention facilities Democrats previously decried as "cages," and quickly deporting thousands of Haitian migrants despite human rights concerns.

As the administration prepared to withdraw from Afghanistan, Biden slow-walked the evacuation of thousands of refugees in danger of being killed by the Taliban, reportedly concerned that conservative critics would conflate the inflow of refugees with the surge at the southern border. But increasingly strict border measures have not stopped frequent attacks by Republican elected officials and right-wing media commentators over his handling of the border. Nor has it helped his plummeting poll numbers. A CBS News poll last month found that 92% of Republicans and 61% of independents think Biden is "not tough enough" on immigration.

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Some centrist Democrats have also been in Biden's ear about getting tougher on border policies.

Sen. Kyrsten Sinema, D-Ariz., earlier this year called for Biden to "do more" and "take bold action" to address the border "crisis."

Rep. Henry Cuellar, D-Texas, arguably the most consistently conservative Democrat in the House, told the Washington Post earlier this year that he has been urging the administration to crack down at the border since Biden's first week in office, calling the White House messaging on the issue "terrible." He also advocated against lifting Title 42, suggesting such a decision would incentivize more migrants to come to the U.S. ""They're just giving the Republicans ammo against Democrats," he told Politico in September.

Some Democratic operatives have also urged Democrats to use tougher rhetoric on immigration in an effort to hang onto middle-ground swing voters. David Shor, a data scientist and veteran of Barack Obama's 2012 campaign who has urged Democrats to focus on economic issues and stay away from culture-war topics, has suggested that Democrats' rhetoric on border crossings and a pathway to citizenship for undocumented immigrants are polarizing among Hispanic voters, which the party worries it is increasingly losing to Republicans. A recent Wall Street Journal poll found that Hispanic voters are evenly split between Democrats and Republicans ahead of the 2022 midterms.

"Our immigration system is a humanitarian crisis, and we should do something about that," Shor told New York Magazine earlier this year. "But the point of public communication should be to win votes. And the way that you do that is to not trigger ideological polarization."

Some inside the administration have also favored tougher deterrence strategies at the border, according to The Wall Street Journal, including White House chief of staff Ron Klain, national security adviser Jake Sullivan, domestic policy adviser Susan Rice and senior adviser Cedric Richmond. These advisers have expressed concerns that persistent news about illegal border crossings will hurt Biden among moderate voters. Some have advised against admitting more refugees while the number of border crossings remains high. It seems clear that such immigration hard-liners have clashed with more progressive members in the administration. Shortly after internal discussions began about administration began about reviving MPP, National Security Council official Andrea Flores, who oversaw the administration's initial efforts to end the policy, resigned in protest.

The policy now in place has alarmed some congressional Democrats. Sen. Bob Menendez, D-N.J., chairman of the Senate Foreign Relations Committee, said that Biden's expansion of the policy is "far beyond a good-faith implementation of the court's order."

"We have a moral obligation to do everything possible to swiftly and permanently discard this policy, along with the many other remaining Trump-era policies that were willfully designed to deter immigrants with cruelty. We cannot externalize our asylum system and abandon our obligations as a beacon of hope and opportunity," Menendez said in a statement, calling on the administration to end "this xenophobic and anti-immigrant policy for good."

Biden officials has repeatedly rejected criticism of the administration's immigration policies, arguing they are still working to undo the damage caused by four years of Trump's destructive and inhumane policies. efforts to gut the immigration system. But that rhetoric seems increasingly at odds with Biden's evident decision to expand on Trump's policies.

"The administration has a moral obligation to stop perpetuating the dangerous restrictionism of the Trump era, which has become the deeply disturbing centerpiece of its own immigration policy," Krish O'Mara Vignarajah, president of Lutheran Immigration and Refugee Service, one of the largest nonprofits helping to resettle asylum-seekers, said in a statement. "Our values and our global humanitarian leadership demand bold solutions that end the refoulement [i.e., forcible resettlement] of vulnerable people and restore protections mandated by U.S. and international refugee law."

Read more on Biden's bewildering immigration policies:

By Igor Derysh

Igor Derysh is Salon's senior news editor. His work has also appeared in the Los Angeles Times, Chicago Tribune, Boston Herald and Baltimore Sun.

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