The stoppage of the policy has contributed to the border crisis, ruling says
A federal judge on Friday said the Biden administration must resume a policy that sees asylum seekers wait in Mexico for their claims to be heard.
The Department of Homeland Security “failed to consider several critical factors” before axing the Trump era “Remain in Mexico” policy, U.S. District Judge Matthew Kacsmaryk, a Trump appointee, found.
That included ignoring how the program was beginning to lead to some immigrants with asylum claims that lacked merit voluntarily returning home, he wrote in a 53-page ruling.
Homeland Security Secretary Alejandro Mayorkas on June 1 of this year formally ended “Remain in Mexico,” though in practice it was stopped when President Joe Biden entered office on Jan. 20. In a memorandum (pdf) to top immigration officials, Mayorkas said a review determined 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.”
“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.
The memo fails to mention some of the primary benefits of the program, which is known as MPP, Kacsmaryk said.
“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.
That made the policy change both arbitrary and capricious, the judge added. The Administrative Procedure Act states that agency actions that are “arbitrary, capricious, or an abuse of discretion” are ripe for being overturned by courts.
Kacsmaryk ordered the Biden administration to resume MPP, though he stayed his order for seven days to let the federal government seek emergency relief at an appeals court.
Texas Attorney General Ken Paxton, a Republican who brought the lawsuit with the state of Missouri, said the ruling showed the Biden administration “unlawfully tried to shut down the legal and effective Remain-in-Mexico program.”
Missouri Attorney General Eric Schmitt, another Republican, described the ruling as a “huge win for border security and the rule of law.”
The Biden administration did not immediately respond to requests for comment.
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8.13.21 Ruling in Texas, Missouri v. Biden Administration PDF
