Migrants from Central America are detained by U.S. Border Patrol agents after crossing into the United States from Mexico, in Sunland Park, New Mexico, July 22, 2021.

Jose Luis Gonzalez | Reuters

The Biden administration will reinstate a Trump-era border policy in November that forces asylum seekers to stay in Mexico until their U.S. immigration court date.

The decision comes after the Supreme Court declined the administration’s request to block an order by a federal judge to reinstate the policy, leaving the administration with a deadline on Thursday to comply.

The policy, known as “Remain in Mexico,” was first implemented in 2019 by former President Donald Trump amid an increase of Central American families crossing the southwest border. 

On his first day in office, President Joe Biden ended the policy, known as Migrant Protection Protocols, or MPP. He called it inhumane due to the violence migrants faced while waiting in Mexico, often in dangerous cities with few resources.

The Republican-led states of Texas and Missouri sued the Biden administration in April over the suspension of the policy. In August, a federal judge for the Northern District of Texas sided with the states and ordered the administration to reinstate the policy pending the outcome of the lawsuit. 

“DHS is taking necessary steps to comply with the court order, which requires us to reimplement MPP in good faith,” said a Department of Homeland Security spokesperson Friday. 

“We are working to do so, despite our appeal of the court’s order,” the spokesperson said, noting that the department is issuing contracts to rebuild temporary immigration-hearing facilities near the U.S.-Mexico border. 

Senior administration officials also told reporters Thursday night that only those who are not expelled under Title 42, a Trump-era health law that Biden has kept in place, would be subject to MPP, according to NBC News.

Title 42, first implemented in March 2020 at the outset of the Covid-19 pandemic, denies certain migrants the opportunity to apply for asylum.

The revival of the MPP policy still hinges on the approval of the Mexican government. Discussions with the Mexican government about when and how the policy will be reimplemented are ongoing, the department spokesperson noted. 

“Significantly, Mexico is a sovereign nation that must make an independent decision to accept the return of individuals,” they said. 

The spokesperson added that the Biden administration will still issue a memo terminating the policy, which would only take effect if the administration defeats the lawsuit filed by Texas and Missouri. 

An estimated 70,000 migrants were returned to Mexico under the Trump-era policy since 2019, according to the American Immigration Council. 

For migrants subject to the policy, that meant waiting months, if not years, to see an immigration judge. It also meant facing threats of extortion, sexual assault and kidnapping, according to the American Immigration Council. 

There were at least 1,544 publicly documented cases of rape, kidnapping, assault, and other crimes committed against individuals sent back under MPP through February 2021, according to Human Rights First. Several people, including at least one child, died after being sent back to Mexico under the policy and attempting to cross the southwest border again.

Plans to revive the MPP come as Biden’s approval ratings have fallen, in part because of the way his administration has handled migration and the border.

In particular, the president has faced backlash for using Title 42 amid the highest number of migrants attempting to cross the U.S.-Mexico border illegally in two decades.

The Centers for Disease Control and Prevention said in August that Title 42 would remain in effect until there is no longer a danger of people who aren’t U.S. citizens bringing Covid-19 into the country when they cross the border. Unaccompanied children are exempt from the health law. 

The Biden administration defended its use of Title 42 on Wednesday, even as it lifts restrictions for fully vaccinated foreign nationals with visas crossing the border from Canada or Mexico into the U.S.

Undocumented migrants who cross the border and are fully vaccinated can be expelled under Title 42.

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