Better at the border: Biden mustn’t repeat Trump’s mistakes on Mexican immigration policy

Six months after it moved to formally terminate the program, the Biden administration is set to restart the Migrant Protection Protocols, also known as Remain in Mexico, a Stephen Miller-championed border policy that forces vulnerable migrants to wait in northern Mexico as their U.S. asylum cases move forward (or, more frequently, get stuck in the gears of a rusted bureaucracy). Biden officials emphasize that they’re doing so due to a federal court injunction, which is true, but they can’t wash their hands of some strange decisions made in resurrecting this damaging program.

For one thing, in his new guidance on implementation, Homeland Security Undersecretary Robert Silvers noted that the policy could be applied against “nationals of any country in the Western Hemisphere other than Mexico,” which would make this policy far broader than the Trump administration’s criteria of migrants from Spanish-speaking countries and Brazil and seemingly tailor-made to include Haiti.

It’s undeniable that MPP caused great harm to asylum seekers, as admitted by Homeland Security Secretary Ali Mayorkas in a new memo rescinding the policy again, where he wrote that it imposed “substantial and unjustifiable human costs on migrants,” including routine kidnappings. That termination memo becomes effective once the injunction is vacated, though the administration could have tried arguing that it superseded the earlier memo and made the injunction moot.

With the program’s return, the federal government must at minimum guarantee that it abides by the thin guardrails it put into place, such as exempting migrants who might be at greater risk in Mexico due to their sexual orientation or gender identity and permitting greater access to attorneys so that asylum claims are actually heard.

If and when the injunction is vacated, it would be grotesque to claim victory while keeping the much more sweeping Title 42 order — which has been interpreted to allow immediate expulsions — in place. The administration must not argue to overturn a program that hurts migrants out of one side of its mouth while fighting to preserve another out of the other.