Court Order To Reimplement 'Remain in Mexico' Could Prove Ineffective

Biden has to negotiate new deal with Mexico to enforce policy

Asylum seekers in Laredo, Texas, in 2019. (Suzanne Cordeiro/AFP via Getty Images)
October 22, 2021

The reimplementation of the Migrant Protection Protocols may do little to curb the surge of migrants at the southern border if the president is unwilling to reach a diplomatic agreement with the Mexican government, giving the White House cover to placate left-wing activists while avoiding being held in contempt of court.

Informally known as "Remain in Mexico," the MPP program forces most migrants who apply for asylum to wait in Mexico before their U.S. immigration court hearing. Although a federal court ruled in August that President Joe Biden must keep MPP as an available enforcement tool, the administration has placed the onus for renegotiating the program on Mexico. Nor is it likely a court will force the two countries to reach an agreement.

"It’s going to be hard to put the genie back in the bottle," Sen. Ron Johnson (R., Wis.) told the Washington Free Beacon when asked about the feasibility of starting the program again. "What President Biden destroyed is profound and significant." 

Proponents credit the Remain in Mexico policy with plummeting apprehensions of illegal immigrants in 2019 and 2020 by disincentivizing attempts to enter the country. They argue Biden's suspension of the policy in January signaled to the world that the southern border was open. Since the policy's repeal, apprehensions of illegal immigrants have surged to an all-time high.

The White House has said it will appeal the court's decision but will comply for now "in good faith." Immigration experts, however, are worried that MPP is effectively dead and that Biden has wiggle room to placate the demands of the court and left-wing activists who call the policy inhumane and a violation of the nation's obligation to care for asylum seekers.

"In the short term, the Biden administration can say, 'There's nothing we can do, the Mexican government won't cooperate,'" said Jessica Vaughn, the director of policy studies at the Center for Immigration Studies. "But ultimately the U.S. is the subject of Mexico's demands, which is not a place you want to be in when conducting diplomacy, especially if the Biden administration behind the scenes actually wants a deal because of political pressure."

In a court filing earlier this year, attorneys for the White House said the Mexican Foreign Affairs Ministry will not "accept MPP enrollees" without "certain improvements to the program," such as not allowing sick migrants back into the country. An Oct. 14 statement from the Department of Homeland Security said that Mexico "must make an independent decision to accept the return of individuals without status in Mexico as part of any reimplementation of MPP."

Negotiations between the United States and Mexico are in a preliminary stage and Biden appears uninterested in mimicking the heavy-handed tactics of his predecessor. Rather than prioritize enforcement, the White House has emphasized it believes in addressing so-called root causes of migration, such as geopolitical instability and a lack of economic opportunities in Latin America. 

Former president Donald Trump faced similar obstacles with Mexico after announcing the policy in December 2018, following a rise in apprehensions on the southwest border. After its formal implementation in January of the following year, U.S. courts temporarily stopped it from going into effect, and Mexico refused to cooperate with a policy it chalked up to doing the "dirty work" of the United States. In May, border apprehensions spiked to their highest level in 13 years.

Not until Trump threatened Mexico with tariffs did the countries reach a diplomatic agreement in June 2019. In exchange for dropping the proposed charges on Mexican-made goods and expediting the processing of migrants, Mexican president Andrés Manuel López Obrador agreed to an expansion of MPP across the shared border.

"Part of the significant reason why Mexico agreed to cooperate [with Trump] was the threat of tariffs," Mark Morgan, the former acting commissioner of Customs and Border Protection, told the Free Beacon. "The fine print [of the Biden administration’s statement] says, ‘as long as Mexico agrees,’ right? They're putting it back on a foreign nation to secure our borders and enforce our immigration laws." 

According to a report from the Migration Policy Institute, the effects of the deal were profound, with migration through Mexico dropping dramatically. The Mexican government was compelled to stop migrants as it had to take care of those waiting for their court dates in the United States or else be subjected to crippling economic sanctions.

By September 2019, Obrador had deployed about 25,000 National Guard troops to assist with controlling the flow of migrants, a "substantial shift," according to MPI, in Mexico’s approach to the problem. 

"When it came time to review progress made under the agreement at the 90-day mark, both governments applauded the significant reduction in irregular migration, easing tensions in the bilateral relationship," the June 2020 MPI report reads. 

Border arrests reached an all-time high in the 2021 fiscal year, according to data released by Customs and Border Protection. The number of illegal aliens who successfully crossed into the United States undetected remains unknown. A 2018 model developed by three professors at Yale University has estimated that only 50 percent of illegal immigrants are caught by authorities at the border. 

Following his victory in the 2020 election, Biden pledged to roll back the nation's immigration policies and loosen asylum restrictions. He argued more liberal policies would actually lead to a drop in migrants at the border.

"The last thing we need is to say we’re going to stop immediately the access to asylum, the way it’s being run now, and then end up with two million people on our border," Biden said. 

In March, Biden tasked Vice President Kamala Harris with solving the migration crisis, though her office has rarely commented whether her approach has resulted in any progress. Customs and Border Protection has apprehended more than 1.7 million migrants along the U.S.-Mexico border since Biden took office. By comparison, border arrests averaged roughly 540,000 a year from 2013 to 2019.