Appeals court rules against Biden administration’s termination of ‘remain in Mexico’ policy
Jose Luis Gonzalez/Reuters

Appeals court rules against Biden administration’s termination of ‘remain in Mexico’ policy

The 5th US Circuit Court of Appeals on Monday night ruled against the Biden administration’s bid to terminate the Trump-era “remain in Mexico” policy, which requires non-Mexican migrants to stay in Mexico until their US immigration court dates.

The Biden administration relaunched the policy last week after a district court order required its revival. The Supreme Court had previously denied a request from the administration that the program’s revival remain on hold while the case was appealed. Since the program was reinstated, 86 migrants have been returned to Mexico, according to the International Organization for Migration.

On Monday night, the 5th Circuit upheld a district judge’s ruling blocking the administration’s termination of the program. The opinion — issued by three Republican-appointed judges — said the administration’s efforts to terminate the program did not comply with the Administrative Procedure Act, which sets out specific processes that agencies must go through in unveiling new policies.

The 5th Circuit also said President Joe Biden‘s move to end the policy — known as Migrant Protection Protocols — violated an immigration law that says noncitizens “shall” be detained or returned to the countries from where they arrived while their immigration proceedings move forward.

The federal government has discretion over whether to detain migrants or release them on parole within the United States while their asylum claims are considered. The 5th Circuit said Congress had put “case-by-case” limits on the government’s ability to release those migrants on parole and that “[d]eciding to parole aliens en masse is the opposite of case-by-case decisionmaking.”

“As the district court found, (Department of Homeland Security) lacks the resources to detain every alien seeking admission to the United States. That means DHS can’t detain everyone ยง 1225(b)(2)(A) says it ‘shall’ detain,” the 5th Circuit said, referring to the relevant immigration law. “So it’s left with a class of people: aliens it apprehended at the border but whom it lacks the capacity to detain.”

The 5th Circuit said that by terminating the program, “DHS has refused to return that class to contiguous territories,” as the law allows it to do.

Administration officials have previously said they disagree with the policy but have been forced to implement it pending appeal.

DHS in October reissued a memo terminating the policy and again outlined the reasons for its termination. After additional review, DHS found that while the policy may have led to a reduction in border crossings, the humanitarian costs justify its termination.

“It delves much deeper into the decision-making and the reasoning behind the decision,” a Homeland Security official told reporters at the time, referring to the new memo. “It squarely addresses some of the alleged failures of the prior memo, as well — addressing the alleged costs to states and alleged concerns about the implications of terminating” the policy.

On Monday, the 5th Circuit rejected the Justice Department’s arguments that the October termination memo made the case moot.

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