Illegal Border Crossings Today:

DHS to Restart “Remain in Mexico” Policy to Comply with Court Order

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FAIR Take | December 2021

On Thursday, December 2, the U.S. Department of Homeland Security (“DHS”) announced that it will be restarting its “Remain in Mexico” policy, formally known as the Migrant Protection Protocols (“MPP”) in order to comply with a federal court order. MPP, which was implemented for the first time in 2019 but authorized by statute in 1996, allows U.S. Customs and Border Protection (“CBP”) to require certain illegal border crossers to wait in Mexico pending their immigration proceedings rather than be detained or released in the United States. Illegal border crossings fell sharply after the Trump administration implemented the policy in 2019.

In August, the U.S. District Court for the Northern District of Texas ruled that DHS had not lawfully terminated MPP and issued an order requiring DHS to restart the program. The court order prohibits DHS from terminating the program until the Department is both able to fully comply with procedures required by the Administrative Procedures Act and is able to regain control of the border. The court concluded that MPP’s termination has, in large part, caused the massive spike of illegal border crossing, prompting DHS to violate federal law to attempt to manage the crisis.

DHS stated that beginning next week, aliens processed for MPP will be returned to Mexico through the following ports of entry: San Diego, Calexico, Nogales, El Paso, Eagle Pass, Laredo, and Brownsville. The program cuts off the most significant pull-factor for illegal border crossing and asylum fraud: the likelihood of being released into the United States. DHS will be offering COVID-19 vaccines to aliens processed for MPP and will require proof of vaccination for reentry into the country.

In its press release, Secretary Mayorkas made clear that the administration intends to terminate the program if the injunction against the government is lifted. The Biden administration formally rescinded MPP in June after announcing its suspension on Inauguration Day. The suspension and ultimate rescission has caused DHS to release thousands of inadmissible aliens into the interior of the United States since January 2021.

Generally, federal law requires DHS to detain illegal border crossers while they are processed through expedited removal proceedings. The historic number of apprehensions of illegal border crossers on the southern border, however, has impeded DHS’s ability to detain even a small fraction of aliens subject to mandatory detention. CBP is on pace to apprehend over two million aliens in calendar year 2021 alone.

“The Mexican government reaffirms its commitment to migrant rights as well as to safe, orderly, regulated migration,” Mexico’s foreign relations secretary said in a statement Thursday. At least one Democrat welcomed MPP’s resurrection. Sen. Mark Kelly (D-Ariz.) said he was concerned about the “crisis level” number of border crossings and said Remain in Mexico can “provide some relief and makes the process easier for our law enforcement at the border.”

The Supreme Court rejected DHS’s request to stay the District Court’s order after determining that the Biden administration “failed to show a likelihood of success on the claim that the memorandum rescinding the Migrant Protection Protocols was not arbitrary and capricious.” The government’s appeal of the decision is currently pending in the courts.