The Battle Over ‘Remain in Mexico’ Shows How U.S. Immigration Policy Has Reached ‘Peak Confusion’

On April 26, the Biden Administration will argue before the U.S. Supreme Court that it has the authority to end a controversial Trump-era policy that requires migrants seeking asylum in the United States to wait in Mexico while their claims are reviewed—even as it has signaled a possible increase of the use of that same policy in the interim.

The Biden Administration has attempted to end the Migrant Protection Protocols (MPP)—often referred to as the “remain in Mexico” policy—since June 2021. Texas and Missouri challenged the move, arguing the Administration does not have the authority to end the policy the way that it did. Now, the Supreme Court will decide whether the Administration must continue implementing the policy until Congress takes action.

MPP is not the only Trump-era immigration policy the Administration is seeking to end. On April 1, the Biden Administration announced plans to lift Title 42, a public health policy that allows the federal government to immediately expel anyone who attempts to make an unauthorized crossing into the U.S. in the name of preventing the spread of COVID-19. Unlike under MPP, migrants can be expelled en masse under Title 42 without being given the right to file an asylum claim.

States have challenged the Biden Administration’s authority to end both policies, and ongoing litigation has complicated whether the Department of Homeland Security (DHS) can lift the policies the way it wants to. In an April 1 call with reporters, a DHS official told reporters that they will “employ” MPP in “much greater numbers post-Title 42” to manage the flow of migrants at the border. “We are under a court order to reimplement MPP in good faith,” the official continued, “and as part of those good faith efforts, we have been systematically increasing our enrollment under MPP.”

Immigrants’ rights groups have criticized that position as hypocritical. Karen Tumlin, director and founder of the advocacy group Justice Action Center, says she is “extremely disappointed,” adding that increasing MPP in the wake of Title 42 seems “worse than one step forward in two steps back.”

By Madeleine Carlisle
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