The outcome of the Supreme Court’s order that the Biden administration restart former President Donald Trump’s “remain in Mexico” policy and begin sending asylum-seekers back to the other side of the border depends on whether Mexico will allow migrants to be returned.
The likelihood that the Migration Protection Protocols, as the program is known, will be carried out is thought to be low, given that Mexico has refused to accept back other migrants sent from the United States under a different U.S. policy.
“Mexico is under no obligation to take back people who are not Mexicans into its territory,” said Theresa Brown, managing director of immigration and cross-border policy at the Bipartisan Policy Center in Washington, adding that it “100% boils down to what Mexico will do.”
The Supreme Court’s decision Tuesday evening mandated the Biden administration go back to returning migrant families seeking asylum to Mexico, where tens of thousands were sent from 2019 through early 2021 to live in tent cities and encampments while they awaited their day in U.S. court. President Joe Biden rescinded the program but was sued to reinstate it by Texas and Missouri in the U.S. District Court for the Northern District of Texas.
“The reality is, Mexico could put its foot down and say, ‘No,’” said Brown. “Just like Title 42, they can put their foot down and say, ‘No, we’re not going to take people back under either of these scenarios, and we’re just done.’ And then the administration has to find something else to do.”
Title 42 refers to the pandemic restrictions that the Trump administration enacted in March 2020 that allowed border officials to turn away immediately any child or adult who came across the border. The Biden administration is still operating under Title 42, but, in the spring, it stopped sending back most families to their home countries because Mexican state governments refused to take back migrants who were not from Mexico. As a result, tens of thousands of families have been released into the U.S.
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Because Mexico was already refusing to take back families under Title 42, Brown said it is unlikely that Mexico would be open to taking back families under a different U.S. initiative, such as the Migration Protection Protocols.
Mexican President Andres Manuel Lopez Obrador agreed to implement the protocols in late 2019 after Trump threatened to impose tariffs on all Mexican exports. Immigrant advocates are now calling on the Mexican president to refuse to work with the U.S. in the hopes of preventing the Supreme Court order from resulting in migrants being sent back to Mexico.
The Department of Homeland Security, which oversees operations at the border, said it is in talks with the Mexican government about reinstating the protocols.
As a result, the Border Patrol may have no other choice than to place families in deportation proceedings that end up with families ultimately being released into the U.S. Families cannot be detained by the government for more than 20 days, and immigration judges face yearslong delays in deciding whether a family who illegally crossed the border should be deported.
Biden could turn to a process known as expedited removal, as the administration has begun doing this summer. Expedited removal allows the government to return migrants quickly at the cost of not allowing them legal proceedings. However, anyone placed in this category has a right to seek asylum before being swiftly removed. The government would have to find more detention space to hold people who are seeking asylum, Brown said.
In addition, the Justice Department will rework its plans to do away with the protocols so that it can try again to end the program but in a way that holds up in court. The American Civil Liberties Union’s Immigrants’ Rights Project Director Omar Jadwat said this was the route that the Biden administration should go.
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“The government must take all steps available to fully end this illegal program, including by re-terminating it with a fuller explanation,” Jadwat said in a statement. “What it must not do is use this decision as cover for abandoning its commitment to restore a fair asylum system.”
