Biden Worked to Bring Back 'Remain in Mexico' Before Supreme Court Ruling

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September 9, 2021

The Biden administration considered restarting the "Remain in Mexico" policy for illegal immigrants, or some version of it, before the Supreme Court's Aug. 24 order requiring the government to keep it in place, the Washington Free Beacon has learned.

A source with knowledge of internal deliberations told the Free Beacon top immigration officials were weighing proposals to resuscitate the Trump administration's immigration program—which required prospective asylum seekers to stay in Mexico as their cases were adjudicated—in light of the "untenable" situation at the southern border.

"Every time we open a temporary processing facility it's overcapacity on the first day," the official said. "The amount of resources we were spending, not to include how much the surge bogged down our law enforcement, was staggering."

The plans to reimplement some version of the Remain in Mexico policy undermine the promises President Joe Biden made to left-wing activists within his party. On the campaign trail, he called the policy "dangerous, inhumane, and goes against everything we stand for as a nation of immigrants." On his first day in office, Biden ordered the Department of Homeland Security to allow new asylum seekers to stay in the United States while they await court dates. Secretary Alejandro Mayorkas formally terminated the policy—also known as the Migrant Protection Protocols—in June. On Aug. 24, the Supreme Court affirmed a lower court ruling, which said Biden violated federal law when he rescinded the policy.

Following the Supreme Court ruling, left-wing immigration activists demanded that Biden fight the policy in court, citing his promises on the campaign trail.

"Biden needs to make necessary fixes, marshal a compassionate vision of protection at the border, and restore asylum now," wrote Dylan Corbett, executive director of the Hope Border Institute. "The ball is in Biden's court."

On Aug. 25, White House press secretary Jen Psaki said Biden would "vigorously challenge" the Trump-era policy, though administration officials had already quietly begun to prepare plans to keep the policy in place. A DHS spokesman said the agency "will comply with the order in good faith" while it appeals the decision.

"DHS has begun to engage with the Government of Mexico in diplomatic discussions surrounding the Migrant Protection Protocols," the spokesman said. "DHS remains committed to building a safe, orderly, and humane immigration system that upholds our laws and values."

Private communications among administration officials did not reflect any doubt about the return of Remain in Mexico or the possibility that Biden would block it in the future.

A senior DHS official alerted immigration officials to the appeals court decision on Friday, Aug. 20, emails obtained by the Free Beacon show. The official wrote the agency would likely need 45 to 60 days to restart the program. Further emails show other senior agency officials were confused as to what court orders required the government to do. One official asked whether the administration was restarting Remain in Mexico outright. Another senior DHS official wrote in an email that the Biden administration had changed its position on Remain in Mexico altogether. Those messages were exchanged one day before the Supreme Court ruled against the Biden administration.

Some DHS officials surmised that the order from the White House to begin reinstituting the policy stemmed from anticipating a loss in the Supreme Court. Rather than get caught flat-footed, the individual wrote, both DHS and Customs and Border Protection should begin the process of reopening migrant facilities in Mexico.

Politico previously reported that the Biden administration "is debating restarting ... a more humane version" of the Remain in Mexico policy in response to the Supreme Court ruling, referred to by some in the Biden administration as "Remain in Mexico lite" that would provide "better living conditions and access to attorneys."