Remain in Mexico Battle Shows Flawed U.S. Immigration Policy

On April 26, the Biden Administration will argue before the U.S. Supreme Court that it has the authority to end a controversial Trump-era policy that requires migrants seeking asylum in the United States to wait in Mexico while their claims are reviewed—even as it has signaled a possible increase of the use of that same policy in the interim.

The Biden Administration has attempted to end the Migrant Protection Protocols (MPP)—often referred to as the “remain in Mexico” policy—since June 2021. Missouri and Texas challenged this move. They argued that the Administration doesn’t have the power to terminate the policy in the manner it did. The Supreme Court now has to decide if the Administration can continue with the implementation of the policy, or if Congress should take action.

The Trump Administration wants to abolish MPP, but not all Trump-era immigration policies. Title 42 is a policy that permits the federal government, in order to stop the spread COVID-19, to instantly expel anybody who attempts to illegally enter the U.S. Title 42 allows migrants to be expelled in masse without the need for asylum claims. This is not possible under MPP.

States have challenged the Biden Administration’s authority to end both policies, and ongoing litigation has complicated whether the Department of Homeland Security (DHS) can lift the policies the way it wants to. In an April 1 call with reporters, a DHS official told reporters that they will “employ” MPP in “much greater numbers post-Title 42” to manage the flow of migrants at the border. “We are under a court order to reimplement MPP in good faith,” the official continued, “and as part of those good faith efforts, we have been systematically increasing our enrollment under MPP.”

Immigrants’ rights groups have criticized that position as hypocritical. Karen Tumlin, director and founder of the advocacy group Justice Action Center, says she is “extremely disappointed,” adding that increasing MPP in the wake of Title 42 seems “worse than one step forward in two steps back.” Nicole Ramos, the director of the Border Rights Project at Al Otro Lado, says an increase in MPP is “nothing more than a deterrent and an attempt to undermine the right to seek asylum at the U.S.-Mexico border.”

However, the Administration insists that it cannot do anything. DHS was required by December’s 5th Circuit to maintain MPP implementation. DHS remains bound by this court order. The Administration’s enrollment has gone up by several thousand in MPP since this order was issued, according to data.

“Secretary of Homeland Security Alejandro N. Mayorkas has repeatedly stated that MPP has endemic flaws, imposed unjustifiable human costs, pulled resources and personnel away from other priority efforts, and failed to address the root causes of irregular migration,” a DHS spokesperson tells TIME. “DHS, however, is under a court order to reimplement MPP, which it continues to fight in the courts including in a challenge before the Supreme Court. The Department must abide by this order in the interim to reimplement the program. As it does so, the Department is committed to implementing MPP in the most humane way possible.”

It could be up to the Supreme Court whether or not that order is kept in force. The back-and-forth over MPP’s fate could be indicative of larger trends in U.S. immigration policies. Theresa Cardinal Brown, the managing director of immigration and cross-border policy at the Bipartisan Policy Center, argues that after the last near-decade of immigration lawsuits over federal government policies from both sides of the aisle, “We’re now at, I think, peak confusion.” Often as soon as a policy is put in place, a lawsuit is filed to stop it, a court may block it, and then a higher court reverses that order, and so on all the way up through the ponderous legal system.

“If you’re trying to figure out what the policy is on any given day, it’s a big question mark—much less what the policy is going to be in the future,” Brown says. “Because it’s not being decided by Congress that makes the laws. It’s not being decided by the executive branch that is supposed to implement the laws. It’s being decided in judiciary. And that is creating a whole lot of confusion for everybody.”

‘Hindenburg crashing into the Titanic’

Both the Biden Administration and the courts will grant their wishes. If that happens, legislators from both sides worry about an increase in immigration to the U.S.-Mexico frontier.

Without Title 42 or MPP in place, America’s immigration policy would largely return to what it looked like during the Obama years. Before 2019, immigrants who arrived at the border had to be processed by immigration courts or removed quickly. The availability of suitable detention facilities, and the discretion of law, determined whether or not they were held. Brown states there’s a greater number of migrants crossing the border now, as well as a wider range of nationalities trying to get into the country. These factors can cause problems in the deportation process.

Republicans and centrist Democrats are concerned that Title 42 and Title 42, which were supposed to deter migration and have been in place for decades, will be lifted. This could result in a flood of migrants at the southern border. Mark Morgan, a visiting fellow at the Heritage Foundation and former acting commissioner of U.S. Customs and Border Protection (CBP) under President Donald Trump who enforced both policies, tells TIME he thinks ending MPP and Title 42 will be like the “Hindenburg crashing into the Titanic.” Immigrants’ rights advocates, on the other hand, argue the programs have failed to deter asylum seekers, pointing to the close to two million times Title 42 has been used to expel people since March 2020, stranding many migrants in dangerous conditions in Mexico.

Even if the Biden Administration wins before the Supreme Court, MPP won’t go away overnight. The case will go back down to the federal district judge in Texas, who will decide whether the Biden Administration’s October 2021 attempt to end MPP was valid. Realistically, MPP is likely to continue for several months even if it’s ruled in favor of the Administration by the Supreme Court. And if the Biden Administration loses before the Supreme Court, MPP would likely stay in place until Congress takes action, which probably wouldn’t be any time soon, as the midterms loom and border security once again appears to be a key issue for voters.

Regardless of what happens to MPP, lawmakers on both sides of the aisle have also pushed against the Biden Administration’s move to end Title 42, arguing there could be a crisis at the border at the end of May. Five Democrats and six Republican Senators filed a bill on April 7 that would stop DHS lifting Title 42 without creating a plan to avoid a flood of migrants. And over 20 states have joined a lawsuit initially filed by Arizona, Louisiana, and Missouri on April 3 asking a judge to immediately block the Administration from ending the policy, arguing Title 42 is a crucial tool stopping a “catastrophe” at the border.

Ramos of Al Otro Lado says her organization is encouraging asylum seekers to wait for “clearer information” and not to “all arrive at the border on May 24,” to try to avoid perpetuating the narrative that there will be chaos come the end of May.

The courts might shake the system up again sooner. Oral arguments in the case over whether the Biden Administration can end Title 42 may happen in a Louisiana district court next month, and the states very well could win a temporary injunction on the Administration’s attempt to lift the policy until the litigation is completed—just as they did with attempts to end MPP. “We have seen so far that judges are very willing to step in and stop the Biden Administration from lifting any Trump-related policies. And there is certainly a chance that that happens again,” says Aaron Reichlin-Melnick, senior policy counsel at the American Immigration Council, which filed a brief supporting the government’s request to end MPP.

It means that, once MPP’s fate is determined, Title 42 may also become a part of the cycle. The options for asylum seekers will again be determined by what has been ruled by federal court.

— With reporting by Jasmine Aguilera

Send an email to Madeleine Carlisle at madeleine.carlisle@time.com.