Administration plans to contest ‘Remain in Mexico’ court ruling

Court says DHS broke administrative law

Mayorkas said he ended the "Remain in Mexico" policy because it didn't align with U.S. values.  (Caroline Brehman/CQ Roll Call file photo)
Mayorkas said he ended the "Remain in Mexico" policy because it didn't align with U.S. values. (Caroline Brehman/CQ Roll Call file photo)
Posted August 16, 2021 at 11:22am, Updated at 3:53pm

The Biden administration plans to challenge a federal judge’s ruling that the government reinstate a controversial Trump administration program that required asylum-seekers to wait in Mexico for decisions in their U.S. immigration cases.

The government filed notice Monday that it would appeal the ruling to the 5th Circuit Court of Appeals, the appeals court that covers Texas, where the federal judge ruled against the administration on Friday. The judge paused the effect of his ruling for seven days to give the federal government a chance to appeal.

In an opinion in a case brought by Texas and Missouri, U.S. District Judge Matthew J. Kacsmaryk of the Northern District of Texas found that Homeland Security Secretary Alejandro Mayorkas hadn't offered sufficient rationale to end the so-called Remain in Mexico program in violation of administrative law.

The judge, a Trump appointee, ordered the administration to implement the policy “in good faith” until it can rescind it in accordance with administrative law, and until the government has enough capacity to detain migrants crossing the border without authorization “without releasing any aliens because of a lack of detention resources.”

The judge’s ruling “would force the government to return to an illegal policy that places asylum seekers in danger and deprives them of their rights to protection under both domestic and international law,” said Judy Rabinovitz of the American Civil Liberties, the lead attorney in litigation challenging the immigration program during the Trump administration.

She said the Biden administration “properly exercised its authority to end the policy.”

Jessica Bolter, an associate policy analyst at the Migration Policy Institute, predicted that if the administration loses on appeal, it would attempt to rescind the immigration program again in a way that meets administrative law requirements. In the meantime, the administration could also re-implement the policy “extremely sparingly,” so that few migrants would be forced back to Mexico under it.

The Remain in Mexico program “is such a symbol of the Trump administration, and it’s so closely tied to the Trump administration’s border policy, that I think it would be hard for the Biden administration to defend that to its supporters,” Bolter said.

Win for GOP states

Kacsmaryk said Mayorkas “failed to consider several of the main benefits” of the Trump immigration policy. The policy has been panned by humanitarian advocates, but the judge noted the program had deterred migrants from seeking asylum.

Mayorkas also didn't heed the warnings of former Trump administration officials who said rescinding the policy would spur increased migration to the border.

Migration levels have increased in recent months, and border agents logged more than 210,000 encounters with migrants in the month of July, according to the latest data by Customs and Border Protection.

A spokesperson for the Homeland Security Department declined to comment. A Justice Department spokesperson deferred comment to the White House, which did not respond to a request for comment. 

The court ruling delivered a victory to Texas and Missouri, two Republican-led states that sued the Biden administration in April challenging its decision to suspend the program. The states claimed that the Biden policy had encouraged more migrants to journey to the U.S., and as a result, imposed more health care, education and other costs on the states receiving them.

In a statement Friday night, Missouri Attorney General Eric Schmitt said the judge’s ruling “will help secure the border and fight the scourge of human trafficking.”

Human rights advocates have slammed the policy, implemented in January 2020 by the Trump administration, for forcing vulnerable migrants to wait in dangerous areas of Mexico, where they had limited access to legal services and other resources. Researchers with Human Rights First have documented more than 1,500 publicly reported instances of rapes, murders, kidnappings and other attacks against migrants pushed back to Mexico under the program.

Roughly 70,000 migrants were subjected to the program, according to data gathered by the Transactional Records Access Clearinghouse, a Syracuse University research center.

Anna Gallagher, executive director of the Catholic Legal Immigration Network, said in a statement Saturday that the Trump program is a “national shame.”

"Jesus said, 'whatever you did for one of the least of these brothers and sisters of mine, you did for me.' Judge Kacsmaryk’s decision is contrary to man’s law and God’s law and must be overturned,” she said.

Following a challenge by advocacy organizations, the 9th Circuit Court of Appeals held last year the Trump policy “clearly violates” federal immigration laws. The case went up to the Supreme Court, but the federal government withdrew its appeal after President Joe Biden took office.

The Trump administration had paused the program in spring 2020 with the onset of the COVID-19 pandemic and border closures, leaving thousands of migrants waiting in Mexico in limbo for indefinitely postponed court dates.

Biden temporarily halted and called for a review of the policy shortly after taking office, and in February, the Department of Homeland Security said it would begin the process of bringing migrants into the U.S. to pursue active cases from inside the country. Mayorkas described the action at the time as “another step in our commitment to reform immigration policies that do not align with our nation’s values.”

At the conclusion of his review, Mayorkas permanently ended what are known as the Migrant Protection Protocols in a seven-page memo on June 1. The memo said the policy “does not adequately or sustainably enhance border management in such a way as to justify the program’s extensive operational burdens and other shortfalls.”

The decision marks the latest court loss for the Biden administration on immigration, as it faces criticism over the record-high numbers of migrants traveling to the U.S.-Mexico border.

Two other federal judges in Texas have issued rulings striking down Biden’s 100-day moratorium on deportations and the Deferred Action for Childhood Arrivals program, an Obama-administration program giving work permits and deportation relief to certain undocumented immigrants brought to the country as children.