Biden goes silent after SCOTUS gives him power to nix Trump immigration policy

Last month, the Supreme Court cleared the way for the Biden administration to unwind a Trump-era policy that has forced thousands of asylum seekers to wait in Mexico, often in dangerous settings, for their U.S. court proceedings.

But having previously moved quickly to end the “Remain in Mexico” policy, the administration has suddenly decided to take its time.

The White House and Department of Homeland Security have been mum on their plans following the Supreme Court’s ruling. Immigration advocates asking about next steps have been met with a similar silence. In that void, a question has emerged: What, exactly, is the hold up?

"The bottom line is they’ve been saying they want to restore a meaningful asylum system. Well, now is their chance to show that they mean it,” said Judy Rabinovitz, deputy director of the ACLU Immigrants’ Rights Project. “Their hands are no longer tied and as long as they’re no longer tied — they should make good on that promise.”

The silence from the administration is the latest tension point between the president and immigration advocates frustrated by President Joe Biden’s failure to deliver on promises he made as president and during his campaign. Advocates continue to press Biden on his pledges to reverse restrictive border policies, including “Remain in Mexico,” imposed by his predecessor. While pieces of Biden’s immigration agenda have been blocked by the courts, they argue the president has also ducked such tough issues for political expediency.

Several groups that were involved in the early efforts to wind down the policy say they have yet to be contacted in the wake of the court ruling. For example, the U.N. refugee agency, which originally played a significant role in organizing to bring asylum seekers with MPP cases into the U.S., has not been looped in any discussions so far, the organization confirmed.

“UNHCR does not have specific plans to be directly involved with the termination of the MPP and as of now we have not been approached nor have we discussed this with the U.S. administration,” an agency spokesperson told POLITICO in a statement, adding that UNHCR “will continue to work with the U.S. and other governments in the region to ensure border and asylum practices and policies are in accordance with international refugee and human rights law.”

The White House and Department of Homeland Security did not respond to requests for comment. But legal steps remain before the policy can officially be terminated.

The Supreme Court still has to formally send its ruling from last month down to the lower court for “Remain in Mexico” to be officially ended — a process that can take weeks.

Still, advocates argue that there’s a lot more administration officials should be doing to prepare for the end of the policy, formally known as the Migrant Protection Protocols.

Though DHS officials, including Homeland Security Secretary Alejandro Mayorkas, have publicly and privately affirmed the policy will be terminated as planned, they have not shared details of their plans, according to several immigration advocates and civil society groups in regular contact with the administration. Those groups say government officials have not discussed what will happen to the thousands of migrants currently enrolled in MPP, waiting in Mexico as their asylum claims make their way through the backlogged U.S. immigration court system. They note, with frustration, the U.S. has continued to enroll more migrants into MPP even after the Supreme Court ruling.

Early in his presidency, Biden officials approached the issue much differently. In February 2021, the administration worked closely with international and nongovernmental groups and the Mexican government to gradually let in migrants with active MPP cases. On Biden’s first day in office, DHS announced it was suspending enrollments into the program. But late last year, Biden revived MPP in order to comply with a court order.

In a letter sent last week to the White House, more than 110 immigrant and refugee rights groups, including the ACLU and Women’s Refugee Commission, urged the Biden administration to take specific actions to unwind the policy. Among the actions demanded included ceasing the return of any migrants to Mexico under the policy.

“Anything less than a swift and principled end to Remain in Mexico will undermine the administration’s credibility; set a terrible example for other countries, including those that host the vast majority of the world's refugees; reward and embolden efforts to stop lawful administration actions; and bolster the unfounded narratives peddled by those seeking to portray people seeking protection as threats to the United States,” the groups said in their letter.

The groups also urged the Biden administration to ask the Supreme Court to “expeditiously transmit” its decision to the lower court to speed up the formal end of the policy. In the ruling, the majority opinion specified that a DHS memo issued in October to end MPP “constituted final agency action.” In that memo, Mayorkas said the program would be terminated as soon as the lower court injunction was vacated.

The groups also urged the administration to quickly coordinate with shelters, international groups and nongovernmental organizations to build out a process so that migrants placed in MPP under both the Trump and Biden administrations could instead pursue their asylum claims from within the U.S.

Several advocates said they want to see the administration be more transparent on its plans for ending MPP and coordinate with local groups and NGOs. They also stressed quick action because of the dangers migrants enrolled in MPP face — including kidnapping and assault — the longer they wait in Mexico.

“The most important thing is to get people to safety and out of the insecurity they face in Mexico as quickly as possible,” said Katharina Obser, director of the migrant rights and justice program at the Women’s Refugee Commission. “We strongly hope they will act with urgency here to ensure people can, in fact, fairly and humanely pursue their asylum claims … after they’ve very publicly committed to doing this.”