Last week, the Supreme Court’s right-wing justices issued a stunning, unsigned order that forces the Biden administration to revive the previous administration’s cruel and unlawful Migrant Protection Protocols (MPP) policy or Remain in Mexico. Now, more than 100 organizations are calling on the Biden administration to take “all necessary legal steps” to attempt again to end the policy, including issuing a new memo.
“There is no lawful, safe, or humane way to carry out MPP,” 108 organizations said in a letter. “Unfortunately, the U.S. District Court failed to grasp this.” They say they believe a new memo “can help clarify that the agency did in fact put a great deal of thought into its rescission of MPP and that the agency’s decision was neither arbitrary nor capricious but a sound exercise of judgment,” a letter said. Otherwise, the Biden administration could be set to throw untold numbers of already vulnerable people back into danger.
“The Biden administration rightfully suspended new enrollments in MPP on its first day in office to conduct a study of the lawfulness and advisability of this program,” organizations said in the letter. “After more than four months of evaluation, the administration formally terminated the policy on June 1.” Additionally, the Biden administration rightfully said it would be allowing a second chance to asylum-seekers previously denied justice under the policy. These were the absolute right moves.
“We commended the administration for taking these steps to end this failed Trump administration policy and redress its harms by working with human rights organizations on the wind-down process, by allowing over 13,000 individuals previously subjected to MPP to continue their asylum cases inside the U.S., and by moving to reopen those cases that had been unlawfully denied,” groups continued. But following a “bizarre decision” issued by a judge appointed by the previous president, and then the Supreme Court’s unsigned order upholding that ruling, the organizations say the Biden administration must again forcefully act now.
“Although we disagree with these rulings, we urge the Department of Homeland Security (‘DHS’) to take all necessary legal steps to immediately issue a new policy memo that provides a fuller explanation for the decision to terminate MPP, and that resolves any Administrative Procedures Act (‘APA’) issues identified by the U.S. District Court,” they write. “Taking this step is the quickest and most secure way to bring an end to MPP consistent with the court’s order.”
Legal experts have noted that it could be challenging for the Biden administration to try to end Remain in Mexico because the court’s logic (using that word generously) was so deeply flawed—and just flat-out wrong. Judge Matthew Kacsmaryk’s order “held that the Biden administration would violate a decades-old law if they chose not to send people back to Mexico under MPP—even though MPP did not exist until 2019 and was not applied across the entire border until January 2020,” American Immigration Council Policy Counsel Aaron Reichlin-Melnick wrote.
Any reinstatement of the policy would require Mexico’s cooperation. The Washington Post reports these talks have begun, “[b]ut early indications suggest the controversial Trump-era policy may not return on a large scale.” It shouldn’t return at any scale period, groups said.
“Any return to MPP or an MPP-like policy or practice that requires people seeking humanitarian protection to return and wait in Mexico while their cases are processed would be a travesty, and we urge the administration to do everything in its power to prevent this from happening,” they continue in the letter. They also urged the Biden administration to end the Stephen Miller-pushed policy that’s used the pandemic as an excuse to deport asylum-seekers quickly. The public health policy was implemented against the advice of actual public health experts. “We also urge the Biden administration to take immediate steps to end the cruel and unlawful Title 42 expulsions and immediately restore access to asylum at the border, including at ports of entry.”
“We invite you to sit down with our organizations to engage in a stakeholders’ conversation on how the administration can comply with the court’s order in good faith while exercising its authority to ensure that asylum seekers and migrants are safely processed into the United States,” groups conclude. Of course, ultimately restoring our nation’s asylum system will also require reforming the court system that’s currently stomping on the U.S. and international right to ask for safety.
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