OPINION: This article may contain commentary which reflects the author's opinion.
A federal appeals court has smacked President Joe Biden and his administration’s attempt to undo former President Donald Trump’s “Remain In Mexico” policy.
The policy requires migrants who are seeking asylum to stay in Mexico until their cases are heard, The Associated Press reported.
In a Monday night ruling, the 5th U.S. Circuit Court of Appeals in New Orleans upheld a Texas-based federal judge’s decision maintaining Trump’s policy, formally known as the “Migrant Protection Protocols.”
President Joe Biden’s administration had appealed the August decision, but also began working with Mexico to reimplement the policy while the legal battle continued. Earlier this month, U.S. authorities sent the first two migrants back to Mexico under the reinstated policy.
Monday’s ruling by three 5th Circuit judges said the administration’s move to end the policy was arbitrary and violated a federal immigration statute requiring detention of those in the country illegally pending removal proceedings. If there is no capacity to detain them, Judge Andrew Oldham wrote for the panel, the statute allows the Department of Homeland Security to return them to “contiguous territories” while proceedings are pending.
On his first day as president, Biden suspended the program, and it was then ended by Homeland Security Secretary Alejandro Mayorkas in June.
But the administration was sued by the states of Missouri and Texas and U.S. District Judge Matthew Kacsmaryk issued an injunction because, he said, the administration had not followed the required procedures to end it and was not able to hold all of the asylum seekers.
“Over the course of the program, border encounters increased during certain periods and decreased during others. Moreover, in making my assessment, I share the belief that we can only manage migration in an effective, responsible, and durable manner if we approach the issue comprehensively, looking well beyond our own borders,” he wrote.
Judge Kacsmaryk said that the memo fails to mention some of the benefits of the policy, known as MPP.
“At the very least, the Secretary was required to show a reasoned decision for discounting the benefits of MPP. Instead, the June 1 Memorandum does not address the problems created by false claims of asylum or how MPP addressed those problems. Likewise, it does not address the fact that DHS previously found that ‘approximately 9 out of 10 asylum claims from Northern Triangle countries are ultimately found non-meritorious by federal immigration judges,’ and that MPP discouraged such aliens from traveling and attempting to cross the border in the first place,” he said.
Mayorkas then revised the policy in October but on Monday the judge said that it “simply reaffirmed the Termination Decision that the States had been challenging all along.”
The administration challenged the original decision to the Supreme Court where it was, again, defeated.
As The Texas Tribune reported:
The Biden administration made an emergency request that the Supreme Court justices act, saying Kacsmaryk “fundamentally misunderstood” federal immigration law and improperly meddled in immigration and foreign policy decisions left to the executive branch. … A panel of the U.S. Court of Appeals for the 5th Circuit had largely sided with Kacsmaryk and had refused the government’s request to stay his ruling while considering the government’s appeal.
All six conservative justices agreed with the lower court’s ruling against the Biden administration:
The application for a stay presented to Justice Alito and by him referred to the Court is denied. The applicants have failed to show a likelihood of success on the claim that the memorandum rescinding the Migrant Protection Protocols was not arbitrary and capricious. … Our order denying the Government’s request for a stay of the District Court injunction should not be read as affecting the construction of that injunction by the Court of Appeals.
