Jennie Taer, DCNF

• The Biden administration’s reimplementation of the Trump-era “Remain in Mexico” policy has resulted in several dozen migrants being sent to Mexico daily to await their court appearances, according to officials who spoke with the Daily Caller News Foundation.
• The policy resumed in early December, despite the Biden administration’s many attempts to rescind the program, and fight the courts that ruled against the administration’s policy.
• “I do not believe enrolling only 35 out of approximately 5,000 illegal border crossers per day is complying with the court order,” Brandon Judd, who serves as the president of the National Border Patrol Council, told the DCNF.

The Biden administration is returning migrants in small numbers to Mexico as it rolls out the resumption of the Trump-era “Remain in Mexico” policy, also known as the Migrant Protection Protocols (MPP), it fought for months to end.

The policy requires border officials to return asylum seekers to stay in Mexico while waiting for immigration court hearings.

The Biden administration suspended MPP one day after President Joe Biden took office.

MPP had endemic flaws, imposed unjustifiable human costs, pulled resources and personnel away from other priority efforts, and did not address the root causes of irregular migration.

— Secretary Alejandro Mayorkas (@SecMayorkas) October 29, 2021

The policy took effect Dec. 6, but it’s not in full effect, according to officials who spoke with the Daily Caller News Foundation.

National Border Patrol Council President Brandon Judd recently told the DCNF that the program resumed last month in two locations, and has, during its start, only resulted in a few dozen migrants being sent to Mexico per day.

“There are only two locations where the Border Patrol is enrolling illegal border crossers into the MPP,” Judd said. “El Paso, Texas has been enrolling approximately 30 people per day for the last month or so and the Chula Vista Station in San Diego on Monday started enrolling approximately 5 people per day. I do not believe enrolling only 35 out of approximately 5,000 illegal border crossers per day is complying with the court order.”

A Congressional source confirmed that less than 40 migrants are being returned each day.

“With a historic number of encounters at the southwest border, the Biden administration has not made a good faith effort to restart the ‘Remain in Mexico’ policy nor have they made meaningful attempts at addressing the border crisis they created,” the source said. “Less than 40 migrants are enrolled in MPP daily.”

A DHS spokesperson told the DCNF that the department is working with the Mexican government “to address security concerns and operational constraints during MPP’s restart,” adding that they could not reveal any details about the location and numbers of the initial returns. 

The Trump administration began implementing MPP in January 2019 after introducing it in December 2018.

Former Acting Commissioner of U.S. Customs and Border Protection (CBP) Mark Morgan argues that the low numbers of returns show that the Biden administration is still reluctant to follow the court’s order, telling the DCNF that it’s having no impact as a deterrent to the large numbers of migrants attempting to cross the border illegally.

“At the end of the day, it’s very clear this administration has been slow rolling the court’s order,” Morgan said. “It’s been over six months now, and all we have to show for it is a few hundred of migrants that have been enrolled in the program.”

Texas and Missouri sued the Biden administration in April, arguing that the president unlawfully halted the program.

In June, Department of Homeland Security (DHS) Secretary Alejandro Mayorkas issued a memo suspending the program. Federal Judge Matthew Kacsmaryk ruled in August that MPP was illegally ended, ordering the Biden administration to reimplement it.

The Biden administration tried to appeal Kacsmaryk’s decision, and the Fifth Circuit and Supreme Courts both separately rejected the attempts at a stay.

In October, Mayorkas issued another memo to suspend the program, but vowed to comply with Kacsmaryk’s ruling, and not implement the termination until a final ruling was made.

“You’re 6 months in the program. They’re only operating in two areas and only a handful per day. So, it’s having zero impacts,” Morgan said. “When the numbers are that low, when you’re still allowing and releasing 99% of the families that are illegally entering our country, the program is worthless. The cartels know it, the smugglers know it, the immigrants know it.

“History has shown us time and time again that the cartels and smugglers and immigrants know our policies and know the loopholes in our system better than most Americans do, so they know right now that it’s all for show, there’s no substance to the program, and it’s having very very little if no impact at all on the flow,” he added.

The Trump administration, Morgan said, made clear to families that they were not going to arrive at the southern border and be released in the country. The former administration sent over 60,000 migrants back to Mexico under the program, according to the Transactional Records Access Clearinghouse (TRAC).

“You could see the last 30 days, it hasn’t impacted the flow one single bit,” Morgan said. “Under the Trump administration, I think we enrolled a little over 60,000 migrants into the program. If you take a look at that, that’s tremendous. And what’s even more important though is that we were doing it all along, all 2,000 miles of the southwest border. It took us a little while to get there, but we did. So we were sending a very clear message that if you came in as a family, no longer was that your passport into the United States to be released and never be heard from again.”

“Here’s why we didn’t have to enroll more illegal aliens in the program. Because it was working. So you saw by February of 2020, a reduction in families by 75%,80%,” he told the DCNF. “The message was clear, the substantive policy was clear. You come to the border as a family, no longer were you gonna be released. So it was effective.”

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