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DHS to phase out ‘Remain in Mexico’ policy after court action

A Texas federal judge dissolved his earlier order that required the program’s revival

A group of migrants are processed by Texas law enforcement after crossing into Eagle Pass, Texas, in July.
A group of migrants are processed by Texas law enforcement after crossing into Eagle Pass, Texas, in July. (Allison Dinner/Anadolu Agency via Getty Images)

The Department of Homeland Security announced late Monday it will begin phasing out a Trump-era program that requires some asylum-seekers to spend months in Mexico, after a Texas federal judge dissolved his earlier order that required the program’s revival.

The department said in a news release that it is “committed to ending the court-ordered implementation” of the immigration program, known informally as the “Remain in Mexico” policy, “in a quick, and orderly, manner.”

The move follows the Supreme Court decision in June that the government is not legally required to implement the program.

The former administration’s policy, initially terminated by the Biden administration but revived late last year under court order, requires some migrants to wait in Mexico for the duration of their U.S. immigration court proceedings, which can last months or even more than a year.

As part of the department’s effort to end the revived program, migrants claiming asylum will no longer be newly enrolled in Remain in Mexico. Additionally, migrants already waiting in Mexico under the program will be “disenrolled” at their next immigration court hearing date and allowed to continue their cases from within the U.S., according to DHS.

The department’s news release added that it “will provide additional information in the coming days.”

The announcement came nearly a year after Judge Matthew Kacsmaryk of the U.S. District Court for the Northern District of Texas ordered the Biden administration to revive the Remain in Mexico program, in a legal challenge by Republican-led states Texas and Missouri.

The Trump-appointed judge found in his Aug. 13, 2021, order that the Biden administration hadn’t offered sufficient rationale to end the Remain in Mexico program in violation of administrative law. Kacsmaryk also concluded the federal immigration statute required DHS to return to Mexico any migrants the government lacked capacity to detain.

The U.S. Court of Appeals for the 5th Circuit agreed, and the Biden administration reinstated the program in December.

But in June, the administration won its appeal at the Supreme Court. The justices also instructed the lower courts to consider a subsequent memo from Homeland Security Secretary Alejandro Mayorkas with more reasoning about terminating the policy.

After some procedural back-and-forth at the 5th Circuit this month, the appeals court sent the case back down to Kacsmaryk, who granted the federal government’s request on Monday to vacate his court ruling.

But litigation isn’t over yet.

After the ruling was vacated, Texas and Missouri promptly asked Kacsmaryk to delay any action from DHS while he considered Mayorkas’ additional explanation behind his decision to terminate the Remain in Mexico policy.

The judge has yet to rule on that request.

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