• Jihan Abdalla, Al Jazeera

‘Remain in Mexico 2.0’: How did the Trump-era policy get revived?

The Biden administration reinstated the controversial ‘Remain in Mexico’ progamme under court order in early December.

Former US President Donald Trump created the 'Remain in Mexico' programme to deter migrants from making what he called 'frivolous' asylum claims [File: Loren Elliott/Reuters]

Washington, DC – Since early December, more than 200 people hoping to claim asylum in the United States have been sent back to Mexico to wait for their US court hearings, a rights organisation said, under a revived widely-condemned Trump-era immigration policy.

The administration of President Joe Biden had sought to end the Migration Protection Protocols (MPP), saying the programme exposed migrants and refugees to unnecessary danger in Mexico.

But a court in Texas ordered the policy – also known as Remain in Mexico – restarted in August, after Missouri and Texas sued the Biden administration, arguing it terminated the policy without following the proper procedures.

In early December, the Biden administration reinstated the programme – with some changes – in compliance with the court’s decision. At the same time, it has asked the Supreme Court to allow it to terminate the MPP.

But experts say the nation’s top court is not expected to deliver a decision before the end of June, and in the meantime, asylum seekers can be returned to Mexico under what immigration advocates have dubbed “Remain in Mexico 2.0”.

Here, Al Jazeera examines what is going on:

What is the ‘Remain in Mexico’ programme?

Former President Donald Trump, who made restricting immigration one of his main policy goals, created the MPP to deter migrants and refugees from making what he deemed “frivolous” asylum claims.

The policy, which came into effect in January 2019, forced people who arrive at the border seeking asylum to wait in Mexico for their US immigration court hearings for months and sometimes years.

About 70,000 people, among them children, were forced to wait in Mexican border towns, often in dangerous and unsanitary refugee camps, as a result of the policy. Their access to legal counsel was also limited.

MPP was heavily criticised by US and international rights groups who said it violated the US government’s obligations under both domestic and international law.

Migrants and refugees under the ‘Remain in Mexico’ programme are escorted by Mexican officials after leaving the US [File: Gregory Bull/Reuters]

What did President Joe Biden do?

Fulfilling a campaign promise, Biden stopped new enrollments into the programme on January 20, his first day in office – effectively suspending MPP.

In the following months, his administration began to unwind the policy by allowing people who were still waiting in Mexico to enter the US to continue their asylum claims. Starting in February, more than 25,000 people were paroled into the US.

Then, Homeland Security Secretary Alejandro Mayorkas issued a memo in June 2021formally terminating the policy.

Then what happened?

In August, Matthew Kacsmaryk, a Trump-appointed judge, ruled in favour of two Republican-led states that had sued the Biden administration over the “arbitrary” termination of MPP. Kacsmaryk ordered the administration to reinstate the policy.

The Biden administration appealed the decision to the US Supreme Court, but it declined to block the Texas court’s ruling.

So what does that mean for MPP?

The Biden administration said it would abide by the Texas court’s order but that it would continue to work towards ending the policy. It later said it would make the MPP more “humane”.

Mayorkas issued a second memo to terminate the MPP in October 2021 that addressed the issues raised by the states that had sued. In a 39-page explanation, Mayorkas said despite contributing to a reduction in migrant and refugee arrivals at the border, MPP unnecessarily put people in harm’s way while waiting in Mexico.

“MPP had endemic flaws, imposed unjustifiable human costs, pulled resources and personnel away from other priority efforts, and did not address the root causes of irregular migration,” Mayorkas said.

Migrants and refugees under the “Remain in Mexico” programme stayed in a makeshift encampment in Matamoros, Tamaulipas, Mexico [File: Loren Elliott/Reuters]

So when did ‘Remain in Mexico 2.0’ come into effect?

The policy came into effect on December 6, and the first two migrants were turned back to Mexico on December 8.

Is this new iteration of the policy different from the previous one?

The Biden administration pledged to make counsel more available to asylum seekers – just 9 percent of MPP enrollees were able to access lawyers under the previous version of MPP, according to the Migration Policy Institute – and for cases to be concluded within 180 days.

Mexico had also requested for “particularly vulnerable populations”, including people with mental and physical disabilities, the elderly, those with illnesses and LGBTQ people, to be exempted from the programme.

Have these promises been met?

Immigration advocates say no. Yael Schacher, deputy director for the Americas and Europe at Refugees International, attended the first two days of MPP hearings on January 3 and 4 in El Paso, Texas.

Schacher told El Paso Matters, a non-profit media organisation, that only five of 82 people enrolled in MPP who had their cases heard on those days had access to legal counsel.