DHS Secretary Mayorkas Ends ‘Remain in Mexico’ Program Despite Court Order

Homeland Security Secretary Alejandro Mayorkas testifies before the Senate Appropriations Subcommittee on Homeland Security in the Dirksen Senate Office Building on Capitol Hill in Washington on May 26, 2021. Chip Somodevilla/Getty Images

Homeland Security Secretary Alejandro Mayorkas on Friday ended the “Remain in Mexico” program despite being ordered by a court to move in good faith to restore it.

“I am hereby terminating MPP,” Mayorkas wrote in a memorandum.

The program is formally known as the Migrant Policy Protocols (MPP). Started during the Trump administration, it forced many asylum seekers to wait in Mexico for their claims to be heard.

Mayorkas ended it earlier this year, claiming it had “mixed effectiveness” and “does not adequately or sustainably enhance border management in such a way as to justify the program’s extensive operational burdens and other shortfalls.”

But a federal judge in August found his memo lacked an exploration of the benefits of the program, which were outlined by the very department he heads. U.S. District Judge Matthew Kacsmaryk, a Trump appointee, ordered the memo vacated and the Biden administration “to enforce and implement MPP in good faith until such a time as it has been lawfully rescinded.”

Kacsmaryk’s injunction ruling was upheld by an appeals court and the Supreme Court. Lawyers for the parties are scheduled for oral arguments before an appeals court in the case next week.

In his new memo, Mayorkas continued promoting twin messaging. He said the administration is working in good faith to restore the policy. But he also said he was terminating it.

“The department will continue complying with the Texas injunction requiring good-faith implementation and enforcement of MPP. But the termination of MPP will be implemented as soon as practicable after a final judicial decision to vacate the Texas injunction,” he wrote.

Mayorkas said he reached the conclusion after a fresh review of all the information relating to the program, including court filings, departmental assessments, and news reports.

“I recognize that MPP likely contributed to reduced migratory flows. But it did so by imposing substantial and unjustifiable human costs on the individuals who were exposed to harm while waiting in Mexico. The Biden-Harris Administration, by contrast, is pursuing a series of policies that disincentivize irregular migration while incentivizing safe, orderly, and humane pathways,” he wrote.

The Biden administration is facing an unprecedented surge in illegal immigration that critics say is fostered by its lax enforcement policies, including the ending of MPP and the curtailment of Title 42, which is used to expel illegal immigrants during the COVID-19 pandemic.

Stephen Miller, a top immigration adviser during the Trump administration, wrote on Twitter that the administration should be held in contempt of court.

“It’s been almost 3 months since a federal judge ordered Biden to reinstate MPP (which could be done with a single phone call) & not only has Biden never reinstated MPP they’ve instead poured their energy into trying to abolish it,” said.

The memo follows three recent updates.

In late September, the states of Texas and Missouri, which brought the suit that led to Kacsmaryk’s ruling, asked the court to force the administration to reinstate MPP. About a week later, Mayorkas’ department said it planned to scrap MPP even though the Supreme Court upheld Kacsmaryk’s ruling. Finally, the administration said it expected to be in a position to re-implement the program in mid-November, pending cooperation from Mexico.