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High court asked to review ‘Remain in Mexico’ ruling

5th Circuit Court of Appeals ruled on Dec 13 that the federal government is legally required to return migrants to Mexico

A U.S. Customs and Border Protection vehicle sits along the border fence in the Rio Grande Valley sector of the border in Texas in 2019.
A U.S. Customs and Border Protection vehicle sits along the border fence in the Rio Grande Valley sector of the border in Texas in 2019. (Photo by Jinitzail Hernández/CQ Roll Call file photo)

The Justice Department urged the Supreme Court on Wednesday to reconsider lower court rulings that required the Biden administration to revive a contested Trump-era program forcing asylum-seekers back to Mexico.

The contested court rulings required administration officials to reinstate the so-called Remain in Mexico program — formally known as the Migrant Protection Protocols, or MPP — less than a year after they rescinded the Trump administration’s policy amid human rights concerns.

The policy, implemented in early 2019, required some 70,000 migrants who requested protection at the southwest border to wait in Mexico for decisions on their U.S. immigration cases.

Lawyers for the administration argued in Wednesday’s petition that the federal appeals court that upheld a Texas federal district judge’s ruling had offered “novel and erroneous interpretations” of immigration and administrative laws in requiring the policy to be revived.

A three-judge panel for the 5th U.S. Circuit Court of Appeals concluded on Dec. 13 that the federal government is legally required to return migrants to Mexico when it doesn’t have capacity to detain them.

“If allowed to stand, that decision will continue to severely impair the Executive Branch’s constitutional and statutory authority to manage the border and conduct the Nation’s foreign policy,” the Justice Department lawyers wrote in their Dec. 29 petition.

This “unprecedented interpretation also suggests that every presidential administration — including the one that adopted MPP — has been in continuous and systematic violation of [this law] since the relevant statutory provisions took effect in 1997,” the petition states.

The Biden administration also asked the high court to consider the case this term, warning of the “enormous legal and practical consequences.”

“Delaying review until next Term would likely postpone resolution of those critical issues until sometime in 2023,” the government lawyers wrote. “In the meantime, the government would be forced to continue negotiating with Mexico to maintain a controversial program that it has already twice determined is no longer in the best interests of the United States.”

The high court petition marks the Biden administration’s latest effort to fulfill its campaign promise to end MPP.

Human rights advocates have slammed the policy 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.

The Biden administration suspended the program shortly after taking office, and Homeland Security Secretary Alejandro Mayorkas terminated it in a June memo in which he said the program “would not be consistent with this Administration’s vision and values.”

Following a lawsuit by Republican attorneys general for Texas and Missouri, U.S. District Judge Matthew J. Kacsmaryk of the Northern District of Texas, a Donald Trump appointee, found the administration had not sufficiently explained its reasons for ending the program.

Kacsmaryk ordered the Department of Homeland Security 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 administration appealed Kacsmaryk’s ruling to the 5th Circuit while also issuing additional memos in October further explaining Mayorkas’ reasons for ending MPP.

However, the appeals court upheld Kacsmaryk’s ruling. The panel of judges also refused to consider Mayorkas’ latest memos terminating MPP, stating they “have no present legal effect” and are part of the government’s “have-its-cake-and-eat-it-too” litigation strategy.

The administration resumed MPP earlier this month. It had returned 212 migrants to Mexico under the revived program as of Dec. 30, according to a spokesperson for the International Organization for Migration.

If the high court agrees to consider the case, it will be the second time the justices have weighed in. Earlier this year, the Supreme Court rejected the Biden administration’s request for reprieve from the district court’s order mandating the policy’s revival while litigation continued.

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