The Biden administration launched a second bid Friday to end a Trump-era policy to make asylum-seekers wait in Mexico for hearings in U.S. immigration courts, while also reaffirming a commitment to reinstate it under court order.
Homeland Security Secretary Alejandro Mayorkas said the "Remain in Mexico" policy likely contributed to a drop in illegal border crossings in 2019 but with "substantial and unjustifiable human costs" to asylum-seekers who were exposed to violence while waiting in Mexico.
The announcement came more than two months after a federal judge ordered that the policy be reinstated "in good faith," while leaving an opening for the administration to try again to justify ending it.
The administration said earlier this month that it expected to reinstate the policy, known officially as "Migrant Protection Protocols," around mid-November, subject to Mexican government approval. Mexico wants cases to generally conclude within six months, timely and accurate access to case information, and better access to legal counsel for asylum-seekers.
Some of the administration's most prominent pro-immigration allies say the time it took for Mayorkas to draft Friday's opinion showed a lack of sense of urgency, which U.S. officials dispute.
Many U.S.-based legal aid groups who have represented asylum-seekers waiting in Mexico say they will no longer take such cases, raising questions about how the U.S. can satisfy Mexico's insistence on better access to counsel. Administration officials say they believe there are enough other lawyers who will represent asylum-seekers sent back to Mexico.
Begun in January 2019
About 70,000 asylum-seekers have been subject to the policy, which Republican President Donald Trump introduced in January 2019 and his successor, Joe Biden, a Democrat, suspended on his first day in office. Mayorkas ended the policy in June after an internal review, saying it achieved "mixed effectiveness."
Illegal border crossings fell sharply after Mexico, facing Trump's threat of higher tariffs, acquiesced in 2019 to the policy's rapid expansion. Many asylum-seekers were victims of major violence while waiting in Mexico and faced a slew of legal obstacles, such as access to attorneys and case information.
Mayorkas said Friday that his second review assumed the policy caused a significant drop in border crossings, calling it the strongest argument to keep it. Still, he said benefits do not outweigh costs in terms of relations with Mexico, resources and risks associated with exposure to violence while waiting in Mexican border cities.
"[There] are inherent problems with the program that no amount of resources can sufficiently fix," he wrote. "Others cannot be addressed without detracting from key Administration priorities and more enduring solutions."
A three-judge panel of the 5th U.S. Circuit Court of Appeals is scheduled to hear arguments Tuesday in a lawsuit filed by the states of Texas and Missouri. The administration is expected to ask that the case be returned to U.S. District Judge Matthew Kacsmaryk, a Trump appointee in Amarillo, Texas, who ordered in August that the policy be reinstated.
The administration is rebuilding tent courts in Texas border cities of Laredo and Brownsville to handle "Remain in Mexico" cases.