The unsigned order stated that the Biden White House failed to prove that its move to stop the program, which required asylum claimants to wait in Mexico until their case could be heard in a US immigration court, was not “arbitrary and capricious.” The court used similar rhetoric last year in declining the Trump administration’s effort to end the Obama-era Deferred Action for Childhood Arrivals (DACA) program.
The order remarked that the high court’s so-called “liberal wing” — consisting of Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor — would have granted the administration’s stay request.
US District Judge Matthew Kacsmaryk in Amarillo had issued a nationwide injunction Aug. 13 ordering that the “Remain in Mexico” program — officially recognized as the Migrant Protection Protocols (MPP) program — be reinstated effective Aug. 21. The Fifth Circuit Court of Appeals rejected the Biden administration’s original appeal Aug. 19, though Supreme Court Justice Samuel Alito granted a temporary stay the next day so that the full court could consider the matter.
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President Joe Biden initially suspended the “Remain in Mexico” policy hours after taking office on Jan. 20. The Republican attorney generals of Texas and Missouri had challenged the suspension in April, informing of a surge of illegal immigration that would result.
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On June 1, while the case was pending before Kacsmaryk, Homeland Security Secretary Alejandro Mayorkas formally dropped the policy, announcing that keeping it in place was not “consistent with this Administration’s vision and values and would be a poor use of the Department’s resources.”
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Mayorkas estimated that 68,000 people were affected by the policy, which was implemented in January 2019 by then-Homeland Security Secretary Kirstjen Nielsen. The Trump administration largely stopped applying the policy at the beginning of the COVID-19 pandemic, at which point it started turning back virtually everyone crossing the Southwest border under the so-called Title 42 health protocol.
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It’s not clear how many people will be influenced by Tuesday’s order and how quickly. The Biden administration had argued that the president had “clear authority to determine immigration policy”, as well as that reinstalling the program “would prejudice the United States’ relations with vital regional partners, severely disrupt its operations at the southern border, and threaten to create a diplomatic and humanitarian crisis.”
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In his original ruling, Kacsmaryk, a Trump appointee, stated that the administration had broken the Administrative Procedure Act of 1946, which spells out certain steps federal agencies must take when implementing policy. Specifically, he discovered that Mayorkas “failed to consider several of the main benefits” of the policy, including that it “reduc[ed] the number of aliens DHS would have to detain by returning certain aliens to Mexico.”
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