Appeals court says Biden must apply 'Remain in Mexico' policy
The Biden administration must make a "good faith" effort to reinstate a controversial Trump-administration program that forced asylum-seekers back into Mexico, a federal appeals court ruled late Thursday, potentially teeing the case up for Supreme Court review.
In a legal blow to the administration, a three-judge panel for the 5th Circuit Court of Appeals refused to lift an order from a federal judge in Texas to revive the Migrant Protection Protocols, often known as "Remain in Mexico," a Trump administration program requiring asylum-seekers to wait in Mexico for decisions in their U.S. immigration cases.
Following a lawsuit from Texas and Missouri, U.S. District Judge Matthew J. Kacsmaryk of the Northern District of Texas ruled on Aug. 13 that the Biden administration's decision to rescind the immigration program "has contributed to the current border surge." He ordered the administration reinstate the program within seven days.
The federal government quickly requested emergency relief from the appeals court, claiming it would be "nearly impossble" to re-implement the program so quickly, and that it would require coordination and cooperation from the Mexican government.
The appellate panel was unpersuaded, slamming those concerns as a "strawman." The judges also said they did not interpret Kacsmaryk's order as requiring the government to restore the program "overnight."
"The injunction only requires good faith on the part of the United States — if the Government's good-faith efforts to implement MPP are thwarted by Mexico, it nonetheless will be in compliance with the district court's order, so long as it also adheres to the rest of the statutory requirements," the panel said.
The appeals court also leaned on the Supreme Court's landmark ruling last year preventing the Trump administration from terminating the Deferred Action for Childhood Arrivals program, or DACA, which provides work permits and deportation relief to certain young undocumented immigrants brought to the U.S. as children.
In that 5-4 decision in June 2020, the high court held the former administration had not sufficiently considered the interests of the hundreds of thousands of DACA recipients, states and others who depend on the program.
"So if the termination of DACA — a discretionary, immigration program — must consider states' 'potential reliance interests,' then so does termination of MPP," the panel said.
In a tweet on Friday morning, Missouri Attorney General Eric Schmitt said the appeals court's ruling "is an important win for securing the border!"
If the administration appeals the decision, the Supreme Court, with a 6-3 conservative majority, could have a chance to review the order.
A Department of Homeland Security spokesperson deferred comment to the Justice Department, which didn't immediately respond to a request for comment Friday. A representative for the Texas attorney general's office also didn't immediately respond to a request for comment.
The appeals court's ruling marks the latest court loss for the Biden administration, which has been hammered by Republican-led states like Texas over its immigration policies.
Federal judges in Texas have also ruled against DACA, forcing the administration to halt new enrollments in the program, and against the administration's effort to prioritize immigrants with serious criminal convictions for deportation.
