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Judge halts Biden administration bid to lift ‘Remain in Mexico’ policy

Reasons given to end the Trump-era border program did not meet legal requirements, federal judge in Texas rules

Migrants walk across the Rio Grande to surrender to U.S. Border Patrol agents in El Paso, Texas, as seen from Ciudad Juarez, Chihuahua state, Mexico, on Tuesday.
Migrants walk across the Rio Grande to surrender to U.S. Border Patrol agents in El Paso, Texas, as seen from Ciudad Juarez, Chihuahua state, Mexico, on Tuesday. (Herika Martinez / AFP)

A Texas federal judge has again stopped a Biden administration attempt to end a Trump-era program forcing asylum-seekers back to Mexico.

Judge Matthew J. Kacsmaryk of the U.S. District Court for the Northern District of Texas concluded on Thursday that an October 2021 memo from Homeland Security Secretary Alejandro Mayorkas explaining his reasons to end the so-called Remain in Mexico program did not meet legal requirements.

The judge, appointed by former President Donald Trump, concluded Mayorkas failed to consider in the memo the program’s “deterrent effect on illegal border crossings and the reduction on unmeritorious asylum claims.” He added that the government “abandoned statistic-based decisionmaking for intuitional decisionmaking.”

Kacsmaryk further took issue with the Department of Homeland Security’s use of “parole” authority, or the legal authority to give migrants temporary permission to reside in the country outside of detention while their immigration cases are pending.

Tens of thousands of migrants cross the border each month. While many are quickly deported, others are permitted to pursue asylum cases in the U.S., and DHS does not have the capacity to detain them all.

Mayorkas “likely could not — and did not — properly analyze the strength” of using the immigration program, formally known as the Migrant Protection Protocols, to comply with federal laws that require the government to detain certain migrants, the judge said.

Mayorkas also did not consider how ending the program, despite not having enough room in detention facilities to hold all arriving migrants, “leads to increased violations of limits on their parole authority as they release aliens into the United States,” the judge said.

The judge’s ruling followed a request by Texas and Missouri to halt the October 2021 termination memo. It’s unclear what the decision immediately means for the Remain in Mexico program, which DHS started to wind down in August.

An administration official said in a statement Friday that Mayorkas “was well within his authority to terminate the prior Administration’s program” and that officials “are determining next steps.”

Following the ruling, Texas Gov. Greg Abbott said on Twitter that the immigration program is a “common sense policy to prevent people from entering our country illegally.”

“Texas wins again, for now,” Abbott wrote.

Kacsmaryk’s latest ruling came after the Supreme Court ruled in June that the Biden administration did have legal authority to end the border program, which was launched in 2019 under the Trump administration.

While the program was in effect during the prior administration, roughly 70,000 migrants were required to spend months or longer in Mexico awaiting decisions in the U.S. immigration court cases. Researchers with Human Rights First 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 called for the program to end via executive order shortly after President Joe Biden took office, and the administration ordered its official termination in a short memo in June 2021.

In litigation from Texas and Missouri, Kacsmaryk ruled in August 2021 that the department had not offered sufficient rationale to end the so-called Remain in Mexico program. He also ordered the administration to implement the policy “in good faith” until it could rescind it in accordance with administrative law.

DHS later released a series of longer memos, in October 2021, further explaining its decision to rescind the program in an effort to beef up the decision against legal challenges. But on appeal, the U.S. Court of Appeals for the 5th Circuit backed Kacsmaryk’s decision and refused to consider the October memo.

The case reached the Supreme Court, which held 5-4 that the Biden administration was not required under federal immigration law to return migrants to Mexico if the government did not have room to detain them. The high court also sent the case back to Kacsmaryk to consider the October memo.

Kacsmaryk’s decision Thursday came less than a week before the government is scheduled to lift a pandemic-era border directive, known as Title 42, after a federal judge in separate litigation ruled the directive was illegally issued.

That policy, also issued under the Trump administration but separate from Remain in Mexico, has allowed border agents to rapidly “expel” migrants who cross the border without considering their asylum claims for nearly three years.

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