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“Remain in Mexico” Still Causing Harm at the Border

The Supreme Court gave Biden the green light to end the policy—so what’s stopping him?
Map of U.S.-Mexico border

By UUSC Staff on August 2, 2022

More than a month ago, UUSC cautiously celebrated the Supreme Court’s decision allowing the Biden administration to end the so-called Migrant Protection Protocols (more accurately known as “Remain in Mexico”). This Trump-era policy caused unspeakable harm at the border, trapping thousands of people in perilous conditions—all without protections for their internationally-guaranteed asylum rights. The Biden administration was right to try to end it, and the Supreme Court was right—if overdue—in finally giving them the go-ahead to do so. 

So why is it that, more than a month after receiving the green light from SCOTUS, Biden has still not ended the policy? Part of the hold-up is procedural. The Biden administration cannot unwind the policy until the high court’s decision is formally transmitted to the lower courts (specifically, the Supreme Court must first certify its June 30 decision and then send it to the district court to implement its ruling). Until this happens, the administration has little choice but to wait. Even the most well-intentioned executive branch cannot move faster than the courts allow. 

Another barrier to prompt action, meanwhile, is the fear of ongoing litigation. As we warned in our statement otherwise applauding the Supreme Court’s June 30 ruling, the court only struck down the specific lower court injunction that had been blocking the administration from ending Remain in Mexico. Regrettably, it did not entirely close the door to future challenges to the administration’s decision on other legal grounds. Therefore, media reports indicate the administration is acting slowly in part out of fear that any modest step they take to unwind the policy could be seized upon as fresh grounds to challenge their decision.

Even while acknowledging these legal barriers, however, advocates say there is more the Biden administration could do to prepare for the policy’s end. Specifically, they could coordinate with humanitarian agencies working at the border to start dismantling the infrastructure by which “Remain in Mexico” is implemented. Instead of maintaining open communication channels with border advocates and beginning to take these common-sense steps, however, the administration has been disturbingly silent.

They have not committed to a clear time table to end the policy; and advocates say they have seen no evidence of the administration making any operational changes at the border that would signal they are planning for the policy to end.

Why this silence and inaction? It could be simply that the administration is fearful about the outcome of future litigation; but recent news reports suggest that worse motives may be in play. A July 29 story in the Wall Street Journal cites internal sources in the administration who say that some members of Biden’s national security team would prefer to keep Remain in Mexico in place, even after the Supreme Court formally transmits its decision. This is in keeping with prior reporting suggesting that advisors close to the president—including Ron Klain, Jake Sullivan, and Susan Rice—have been urging him to slow-walk the reversal of Trump-era anti-immigrant policies (including but not limited to Remain in Mexico). 

This is deeply concerning if true. There is no valid policy basis for maintaining Remain in Mexico—a program that has been responsible for more than 1,500 documented incidents of violence carried out against people seeking asylum at the U.S.-Mexico border. Of course, the Remain in Mexico policy is only one of several Trump-era hold-overs that are currently stranding people in deadly conditions in Mexico. The Title 42 asylum ban is also still being used to expel asylum-seekers across the border and to their home countries, without access to the refugee protections that are enshrined under international law. 

With regard to Title 42, however, the Biden administration has fewer options. This policy remains in effect because a lower court injunction has forced them to keep implementing it. Remain in Mexico is another story. Here, the Supreme has explicitly given the administration permission to end the program. This means the White House could be taking steps as of today to communicate with immigration advocates, operationalize the coming end of the policy, and prepare to process people on U.S. soil instead of unjustly stranding them in Mexico. 

If the only reason they aren’t doing so is because some segments of the administration secretly welcome the policy—as the Wall Street Journal’s reporting indicates—then it would be another blatant betrayal of this administration’s commitments to people seeking asylum. Families and individuals have braved extraordinary dangers to reach safety for themselves and their loved ones. Their efforts to seek asylum and justice are—in the words of our Guatemalan partners at Asociación Pop No’j—an act of love. The United States must not turn them away.

Photo Credit: iStock—DNY59

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